- 41 -
GOEKE, J., concurring: I agree with the reasoning and the
result reached by the majority. I write regarding the
application of section 6654 only to clarify why the approach used
in this case is consistent with our normal practice of applying
the return test set forth in Beard v. Commissioner, 82 T.C. 766
(1984), affd. per curiam 793 F.2d 139 (6th Cir. 1986).
We have applied the Beard test in many different contexts.1
We have even relied on Beard in determining whether a return was
filed and the taxpayers were liable for the addition to tax under
1See, e.g., Swanson v. Commissioner, 121 T.C. 111, 123-125
(2003) (whether a substitute for return constituted a return
within the meaning of 11 U.S.C. sec. 523(a)(1)(B) (2000));
Williams v. Commissioner, 114 T.C. 136, 140 (2000) (accuracy-
related penalty under section 6662(a)); ICI Pension Fund v.
Commissioner, 112 T.C. 83, 88 (1999) (period of limitations under
sec. 6501); Galuska v. Commissioner, 98 T.C. 661, 668-669 (1992)
(statutory limitations on time for filing claims for credit or
refund or limitations on any amount of any credit or refund
allowable for purposes of secs. 6011(a), 6511(b), and 6512(b)),
affd. 5 F.3d 195 (7th Cir. 1993); Martin Fireproofing v.
Commissioner, 92 T.C. 1173, 1192 (1989) (addition to tax for
failure to timely file under sec. 6651(a)(1) and filing of
information return under sec. 6033); Beard v. Commissioner, 82
T.C. 766, 780 (1984) (applying test for purposes of secs. 6011,
6012, 6072, and 6651(a)(1)), affd. per curiam 793 F.2d 139 (6th
Cir. 1986); Rodriguez v. Commissioner, T.C. Memo. 2003-153
(collection case under sec. 6330 where issue was whether returns
were filed for purposes of deciding whether respondent’s failure
to consider offer in compromise was an abuse of discretion);
Dunham v. Commissioner, T.C. Memo. 1998-52 (fraudulent failure to
file under sec. 6651(f)); Eckel v. Commissioner, T.C. Memo. 1990-
174 (addition to tax for substantial underpayment under former
sec. 6661); Hintenberger v. Commissioner, T.C. Memo. 1990-36
(return status under sec. 6013), affd. without published opinion
922 F.2d 848 (11th Cir. 1990); Counts v. Commissioner, T.C. Memo.
1984-561 (addition to tax for negligence under former sec.
6653(a)), affd. 774 F.2d 426 (11th Cir. 1985).
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