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Petitioner had a duty to file an estate tax return as of a
certain date and to pay the amount of the tax due on that date.
Like a taxpayer entitled to carry back an NOL, petitioner here,
did not incur, and therefore was not able to determine, the
subsequently incurred expenses until after the estate tax return
was required to be filed. Like the NOL carrybacks, these
expenses could not have been deducted in computing the tax
required to be shown on the estate tax return. Like NOL
carrybacks, these later incurred expenses can be deducted only
pursuant to proceedings subsequent to the filing of the return.
See sec. 20.2053-1(b)(3), Estate Tax Regs.1
The fraud that is being penalized by section 6663(a) is
complete when a fraudulent return is filed. In Badaracco v.
Commissioner, 464 U.S. 386, 394 (1984), the Supreme Court
explained that:
fraud was committed, and the offense completed, when
the original return was prepared and filed. * * * In
short, once a fraudulent return has been filed, the
case remains one "of a false or fraudulent return,"
1This is the same situation recognized by the Senate Finance
Committee report that is quoted in the majority opinion p. 5.
A taxpayer entitled to a carry-back of a net
operating loss * * * will not be able to determine the
deduction on account of such carry-back until the close
of the future taxable year in which he sustains the net
operating loss * * *. He must therefore file his
return and pay his tax without regard to such
deduction, and must file a claim for refund at the
close of the succeeding taxable year when he is able to
determine the amount of such carry-back. * * * [S.
Rept. 1631, 77th Cong., 2d Sess., at 123 (1942), 1942-2
C.B. 504, 597; emphasis added.]
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