- 37 -
to the examining agent herein constitutes filing, the document is
not a valid joint return. Cf. Olpin v. Commissioner, supra
(unsigned joint return is invalid return even though IRS had
treated it as filed, processed it as joint return, and accepted
payment of liability reflected thereon). Since the unsigned 1994
Form 1040 is not a valid return, petitioner failed to elect to
make a joint return prior to the issuance of the notice of
deficiency in this case. See sec. 6013(b)(2)(C).23
Petitioner appears to argue that various actions and/or
inactions24 by Internal Revenue Service personnel should
constitute a waiver of the signature requirement. However, the
signature requirement for purposes of a valid joint return may
not be waived by Internal Revenue Service personnel. Olpin v.
Commissioner, supra at 1301 (“acceptance cannot cure an invalid
return”); see also Lucas v. Pilliod Lumber Co., 281 U.S. 245
23 Sec. 6013(b)(2)(C) is currently codified as sec.
6013(b)(2)(B), effective for taxable years beginning after July
30, 1996. Taxpayer Bill of Rights 2, Pub. L. 104-168, sec.
402(a), 110 Stat. 1459 (1996).
24 In addition to the arguments already noted, petitioner
contends that the Internal Revenue Service failed to advise him
that his attempt to claim joint filing status had not been
accepted. In response, respondent points to the Form 4549,
Income Tax Examination Changes, prepared by the revenue agent and
dated Mar. 6, 1998, which is attached to the notice of
deficiency. Respondent contends that the Form 4549, which
employed a “Married - Separate” filing status, put petitioner on
notice that his claim of joint filing status had not been
accepted. The record in this case, however, does not establish
that the Form 4549 was provided to petitioner prior to the
mailing of the notice of deficiency.
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