- 32 - 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.]Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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