- 27 - 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...)Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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