Herbert C. Elliott - Page 8

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               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:                  

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