Michael Morrissey - Page 24

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            a predecessor of section 6651(a)(1) provided explicitly that              
            reasonable cause could not be present where, as is the case               
            here, the taxpayer never filed a return, see Revenue Act of               
            1928, ch. 852, sec. 291, 45 Stat. 857,6 section 406 of the                
            Revenue Act of 1935, ch. 829, 49 Stat. 1027, removed the                  
            prerequisite of a return for a finding of reasonable cause, and           
            it ceases to be a prerequisite today, see sec. 6651(a)(1); see            
            also Bowlen v. Commissioner, 4 T.C. 486, 494 (1944); Estate of            
            Kirchner v. Commissioner, 46 B.T.A. 578 (1942).                           
                 The knowledge that we do impute to petitioner with respect           
            to 1990 and 1991 is that this Court had held twice before                 
            July 31, 1991, that a transfer of unencumbered property to a              
            pension plan in satisfaction of a funding obligation was not              
            reportable on a Federal excise tax return.  Although the Court            
            of Appeals for the Fourth Circuit reversed one of these                   
            decisions before July 31, 1992, see Wood v. Commissioner,                 
            955 F.2d 908 (4th Cir. 1992), the Court of Appeals for the                
            Fifth Circuit affirmed the other decision 2 months before that            


               6 Sec. 291 of the Revenue Act of 1928, ch. 852, 45 Stat.               
          857, provides:                                                              
                    In case of any failure to make and file a return                  
               required by this title, within the time prescribed by                  
               law * * *, 25 per centum of the tax shall be added to                  
               the tax, except that when a return is filed after such                 
               time and it is shown that the failure to file it was                   
               due to reasonable cause and not due to willful neglect                 
               no such addition shall be made to the tax.* * *                        




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