Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polacheck, Co-Executors - Page 32

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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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