Oliver K. Robinson and Deborah L. Robinson, et al. - Page 15




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         (1993).10  As previously indicated, the Supreme Court also                   
         interpreted the term “return” in section 6501(a) to be the return            
         of the taxpayer against whom the deficiency is determined or to              
         be assessed.  Id. at 527.                                                    
              Although the Bufferd opinion was not in the context of a                
         shareholder and a C corporation, the following comments appeared             
         in a footnote to that opinion:                                               
              Petitioner additionally asserts that the returns of                     
              shareholders of a Subchapter C corporation cannot be                    
              adjusted after the limitations period has run for                       
              assessing the corporation’s return, and that therefore                  
              S corporation shareholders are entitled to identical                    
              treatment. * * * However, petitioner has not provided a                 
              single authority in support of the premise of this                      
              assertion.  At oral argument, the Commissioner                          
              maintained that the opposite is the case, * * * relying                 
              mainly on Commissioner v. Munter , 331 U.S. 210, 67 S.                  
              Ct. 1175, 91 L.Ed. 1441 (1947), which, without                          
              addressing the limitations issue, allowed an adjustment                 
              of shareholders’ 1940 taxes based upon the                              
              Commissioner’s finding that, at the time of its                         
              creation by merger in 1928, the corporation had                         
              acquired the accumulated earnings and profits of its                    
              predecessor corporations.  A recent Tax Court decision                  
              also provides indirect support for the Commissioner’s                   
              view:  “We have held that the relevant return for                       
              determining whether, at the time a deficiency notice                    
              was issued, the period for assessment had expired under                 
              section 6501(a) ‘is that of petitioner against whom                     
              respondent has determined a deficiency.’  [Citing                       
              Fehlhaber, 94 T.C., at 868.]  We have maintained that                   
              position consistently, without regard to the nature of                  
              the source entity.  See [cases involving partnerships,                  
              trusts, and S corporations].”  Lardas v. Commissioner,                  
              99 T.C. 490, 493 (1992).  In any event, it is doubtful                  


               10  The holding in Bufferd v. Commissioner, 506 U.S. 523               
          (1993), also resolved any question about whether the use of the             
          term “return” in sec. 6037(a) and/or sec. 6012 results in the               
          application of the assessment period at the entity level with               
          respect to S corporations.                                                  




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