Faramarz Fayeghi and Shelli Fayeghi - Page 6

                                        - 6 -                                         

          petitioners reported due in their original 1990 tax return.                 
          Petitioners' response states in pertinent part:                             
               First, the amended return on its face clearly indicates                
               that a taxpayer will change the original return by                     
               filing the amended return.  Second, an amended return                  
               constitutes a claim for refund where the amount of tax                 
               liability reported on the amended return is less than                  
               the amount reported on the original return.  Where the                 
               tax was not paid with the original return (as                          
               Petitioners did not do in this case), the IRS cannot,                  
               of course, "refund" what was not initially paid.                       
               However, the reduced amount of tax reported constitutes                
               a "rebate" as such term is defined at section                          
               6211(b)(2) of the Internal Revenue Code (essentially,                  
               the taxpayer effects a repayment of a previous                         
               liability).  By either rationale, the amended return                   
               filed by Petitioners reduced the amount that they had                  
               self assessed.  If Respondent asserts that Petitioners                 
               owe more than the amount of such self assessment, then                 
               the difference constitutes a deficiency.   See Section                 
               6211(a) of the IRC.                                                    
          Respondent filed a response to petitioners' response citing Dover           
          Corp. v. Commissioner, T.C. Memo. 1997-339,  affd. per curiam               
          F.3d. ___ (2d Cir., June 4, 1998), for the proposition that the             
          Commissioner's rejection of a taxpayer's amended return does not            
          convert the disallowed claim for refund or abatement into a tax             
          deficiency within the meaning of section 6211(a).                           
               Petitioners subsequently filed a response to respondent's              
          response, citing Russell v. United States, 592 F.2d 1069, 1072              
          (9th Cir. 1979), and arguing that respondent should be barred               
          from attempting to collect any amounts for 1990 because the Court           
          has jurisdiction to decide "the entire gamut of possible issues             

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  Next

Last modified: May 25, 2011