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Rather it appears that petitioner attempted to provide support
for his position that he had previously filed his 1991 return.
The purported copy was submitted to respondent's Appeals Office
as evidence of a filing. There is no question that the document
submitted to the IRS by petitioner purports to be a copy of a
previously filed return. Respondent's argument that the
submission of the purported copy of a return to the IRS Appeals
Office (after the petition was filed) constitutes the filing of a
return (which, she claims, would invoke section 6013(b)(2)(C)) is
unpersuasive.
At the time the notice of deficiency was mailed and the
petition was filed, no return had been filed by petitioner.
Thus, at that time, petitioner was in the same position as the
taxpayers in Millsap v. Commissioner, supra at 938, and the
taxpayer in Phillips v. Commissioner, 86 T.C. 433, 437 (1986),
affd. on this issue 851 F.2d 1492 (D.C. Cir. 1988). In those
cases, we held that the taxpayers could elect joint return status
after a proceeding was commenced in this Court. We reasoned in
Millsap v. Commissioner, supra at 937, as follows:
To treat the issue of a taxpayer's filing status
any differently than the issues involving deductions or
income items would be arbitrary and without reason. A
taxpayer is no less entitled to question respondent's
determination of filing status than he is any other
determination. * * *
we hold that in situations where deficiency procedures
are availed of and a taxpayer has not filed a return,
the taxpayer may file a return and contest respondent's
filing status determination, even though respondent has
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