Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polacheck, Co-Executors - Page 25

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          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.                         


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Last modified: May 25, 2011