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RUWE, J., dissenting: The majority holds that in
determining the "underpayment" on which the section 6663(a) fraud
penalty is imposed, petitioner is allowed to deduct expenses that
were incurred long after the fraudulent estate tax return was
filed. Although there is no dispute that reasonable postreturn
expenses are allowable for purposes of determining the ultimate
estate tax, section 6663(a) specifically provides that the fraud
penalty be imposed on "any part of any underpayment of tax
required to be shown on a return". (Emphasis added.) The
majority interprets the highlighted portion of the statutory
phrase as merely a classification of the type of tax to which
section 6663(a) applies. I believe that a more reasonable
interpretation is that section 6663(a) imposes the penalty on the
amount of the fraudulent underpayment of tax that was required to
be shown on a return at the time the fraudulent return was filed.
An estate tax return must be filed, and the tax must be
paid, within 9 months after the decedent's death.1 Secs.
6075(a), 6151. A deduction from the gross estate is allowed for
administration expenses. Sec. 2053(a). For expenses that are
not paid prior to filing the estate tax return, an estimated
amount may be deducted if it is known that such expenses will be
1An extension up to 6 months may be obtained for filing.
Sec. 6081(a); sec. 20.6081-1(a), Estate Tax Regs.; see Estate of
La Meres v. Commissioner, 98 T.C. 294, 320-321 (1992). The time
for payment of the estate tax may be extended for a period of 1
year past the due date. Sec. 6161(a)(1). For reasonable cause,
the time for payment may be extended for up to 10 years. Sec.
6161(a)(2).
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