Henry A. Julicher - Page 37




                                       - 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.                                        





Page:  Previous  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  Next

Last modified: May 25, 2011