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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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