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We disagree. The legislative history of sec. 7491(c)
illustrates that Congress intended the term “examination” to
include events other than audits, such as the matching of amounts
reported on information returns against amounts reported on a tax
return, or the review of a claim for refund prior to issuing the
refund. H. Conf. Rept. 105-599, at 242 (1998), 1998-3 C.B. 747,
996. Respondent’s argument that there was no examination because
the returns were accepted as filed overlooks the fact that the
additions were determined before the returns were filed. Given
that the deficiency notices were issued on April 19, 1999, and
the determinations therein were based on a review of information
returns, we find that examinations within the meaning of the
effective date provisions of section 7491 occurred after July 22,
1998, in this case.
The stipulations in this case establish that petitioner did
not file his 1995 and 1996 returns until July 22, 1999. Thus
respondent has satisfied his burden of production with respect to
the additions to tax for failure to file timely returns.
With respect to the addition to tax for failure to pay
timely for 1996, it is undisputed that petitioner filed no return
for 1996 prior to the issuance of the notice of deficiency.
Thus, any addition to tax for failure to pay must be based upon a
substitute for return under section 6020(b) pursuant to section
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