Fortunato J. Mendes - Page 29

                                       - 29 -                                         
          preceding-year-return safe harbor as follows:                               
                    This objective of the safe harbor provision -- to                 
               provide a predictable escape from any possible penalty                 
               liability -- would be defeated if penalties for                        
               underpayment of estimated taxes during the year were                   
               based, not on the easily determinable amount reflected                 
               on the preceding year’s return, but instead upon the                   
               ultimate tax liability, possibly determined by adverse                 
               tax audit, a year or so after the tax year for * * *                   
               which the estimated tax installments were paid.  * * *                 
               [Id. at 204.]                                                          
               “Safe harbor” also is an apt description of the identical              
          preceding-year-return rule applicable to individuals, sec.                  
          6654(d)(1)(B)(ii), and it is an apt description of the rule,                
          applicable to both corporations and individuals, limiting the               
          required annual payment of estimated tax to the tax shown on the            
          return (if one is filed) for the taxable year in question, secs.            
          6654(d)(1)(B)(i) and 6655(d)(1)(B)(i).                                      
               Our decision is consistent with the “objective of the safe             
          harbor provision” referred to by the Court of Appeals in Evans              
          Cooperage.  Petitioner’s failure to file a return prior to                  
          respondent’s issuance of the notice presents us with a situation            
          that is the exact opposite of that referred to in Evans                     
          Cooperage, where the filing of returns preceded the audit.  Here,           
          upon issuance of the notice, it is the tax liability determined             
          by respondent that is the “easily determinable amount” and it is            
          the return amount that is “possibly determined” in some later               
          year.  In effect, petitioner, by not filing the 1988 return prior           
          to issuance of the notice, has waived his right to the                      





Page:  Previous  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  Next

Last modified: May 25, 2011