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no return is filed for the taxable year.1 See sec. 6665(b)(2);
Meyer v. Commissioner, 97 T.C. 555, 562 (1991) (citing Fendler v.
Commissioner, 441 F.2d 1101 (9th Cir. 1971), and Estate of
DiRezza v. Commissioner, supra). On brief, respondent states, as
a fact: “Petitioner did not file an individual federal income
tax return for the year 1992 until October 2, 1996, a few days
before trial of this case.” That statement (the proposed
finding) suggests, perhaps inadvertently, that, on October 2,
1996, petitioner did file his 1992 return. In support of the
proposed finding, respondent’s only references are to (1) the
stipulated fact that petitioner mailed his 1992 return to
respondent's counsel on October 2, 1996, and (2) the exhibit that
constitutes a copy of that return. Nothing in respondent’s brief
indicates that respondent recognizes that the wording of the
proposed finding could raise a question under section 6665(b)(2).
Our standing pretrial order encourages (indeed, requires) the
exchange of documentary evidence before trial. Therefore, on the
stipulation alone, we are unwilling to conclude that petitioner
filed a return and that we lack jurisdiction.
At trial, petitioner conceded that he did not make any
estimated tax payments, but claimed that an exception applied.
Petitioner did not specify the exception that purportedly applies
1 In the case of an overpayment of an addition to tax under
sec. 6654(a), see Judge v. Commissioner, 88 T.C. 1175, 1186-1187
(1987).
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