- 8 - Booher arose under the 1939 Code provisions, and for reasons discussed, infra, we do not believe that it is controlling under the 1954 Code and subsequent enactments. Lombardo involved the situation where a taxpayer sought to disavow the filing of a return. The Court held that the taxpayer had "not carried his burden of showing that the filing of his return and affixing of his signature by * * * [an agent] was not authorized." Lombardo v. Commissioner, supra at 358. In making this determination, we relied on United States v. Wynshaw, 697 F.2d 85 (2d Cir. 1983). In that case, the Court of Appeals for the Second Circuit applied the doctrine of estoppel to preclude the taxpayer from denying that she had executed the return. In Lombardo we also referred to both Miller and Booher. This reference, however, was not necessary to the rationale of our holding and was essentially dictum. In Lombardo, unlike the present case, the taxpayer's agent timely filed the return under authority duly granted by a power of attorney that was signed by the taxpayer and attached to the return. Booher relies upon Miller. The holding in Miller v. Commissioner, 237 F.2d at 835, was predicated on the view that there was no "specific authorization in the statute [under the 1939 Code] for the Commissioner to specify by regulations what constitutes a return." See Miller v. Commissioner, supra at 837 where the Court of Appeals noted that under the 1939 Code:Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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