Fortunato J. Mendes - Page 27

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          to the ultimate tax liability for the taxable year in issue, even           
          when the return for the preceding year was held to have                     
          fraudulently understated income, Schwarzkopf v. Commissioner, 246           
          F.2d 731, 734-735 (3d Cir. 1957), affg. on other issues and                 
          remanding on that issue T.C. Memo. 1956-155, or when such return            
          was not filed until after the due date, Rev. Rul. 2003-23, 2003-8           
          I.R.B. 511;  see also Rev. Rul. 80-355, 1980-2 C.B. 374 (“return            
          for the taxable year” is joint return filed after due date as               
          replacement for separate returns filed before due date).                    
               None of the above-cited authorities address circumstances in           
          which the taxpayer’s original return was filed after a notice of            
          deficiency had been issued.  In this case, the 1988 return was              
          filed more than 2 years after issuance of the notice (May 14,               
          1997, versus May 3, 1995) and almost 22 months after the filing             
          of the petition on July 17, 1995.  Under those circumstances we             
          will disregard the 1988 return as we do not consider it to be a             
          “return” for purposes of section 6654(d)(1)(B)(i).14  To hold               

               14  There is no inconsistency between our treating                     
          petitioner’s reporting of the amounts listed on Schedules B and D           
          of the 1988 return as an admission that those amounts are                   
          includable in 1988 gross income, see the discussion supra in                
          Section I.A., and our finding herein that the 1988 return is not            
          a “return” for purposes of sec. 6654(d)(1)(B)(i).  The former               
          conclusion is based upon caselaw which treats a taxpayer’s return           
          position as an admission by the taxpayer that that position is              
          correct.  That characterization of a taxpayer’s return position             
          is not contingent upon a finding that the return itself                     
          constitutes a valid return for purposes of various provisions of            
          the Internal Revenue Code (e.g., secs. 6501(a), 6651(a)(1),                 
                                                             (continued...)           





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