- 25 - 6664(a) without any temporal qualification, the focus is on the phrase “of tax required to be shown on a return”, which modifies the term “underpayment” in section 6663(a).1 I am persuaded that the majority has reached the right result on the basis of both the history of section 6663 and a textual analysis. The relevant history concerns the evolution of the 1939 Code into the 1954 Code. An adequate summary of that history is provided in Judge Chabot's concurring op. pp. 16-19. The important point is that, in 1954, Congress’ purpose was to consolidate and revise many of the 1939 Code fraud provisions. Under the 1939 Code, as described in the report of the Committee on Finance, see Judge Chabot's concurring op. p. 18, there were two models for imposition of a fraud addition. For all taxes, there was a 50-percent addition in the case of fraud. The base 1 In pertinent part, the term “underpayment”, as defined in sec. 6664(a), is the difference between “the tax imposed by this title” and “the amount shown as the tax by the taxpayer on his return”. Notwithstanding that the majority says that the issue before the Court is whether the underpayment “is determined based solely on expenses which are included on the Federal estate tax return, or based on all deductible expenses including deficiency interest and professional fees which arise after the filing of the return”, majority op. p. 2, the issue is plainly whether sec. 6663(a) specifies a time (the time for filing the return) for determining the minuend (i.e., the “the tax imposed by this title”) in the sec. 6664(a) equation. With respect to the question of statutory interpretation facing us, the subtrahend (i.e., “the amount shown as the tax by the taxpayer on his return”) is invariable. Thus, a taxpayer can reduce the sec. 6663(a) fraud penalty by proving deductions available at the time the return was filed but omitted therefrom. Cf. Summerill Tubing Co. v. Commissioner, 36 B.T.A. 347 (1937) (discussed in the text). The majority’s mischaracterization is of no consequence in calculating the relevant difference.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011