- 15 - (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.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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