Fortunato J. Mendes - Page 46

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          original return was filed after a notice of deficiency had been             
          issued.”  Majority op. p. 27.  I agree.  These authorities,                 
          however, support the proposition that we should follow the                  
          statute and let the chips fall where they may.  Schwarzkopf v.              
          Commissioner, supra at 734-735 (stating that a taxpayer may rely            
          on the tax shown on a return from the preceding year even when              
          the return is held to have fraudulently understated income); Rev.           
          Rul. 2003-23, 2003-8 I.R.B. 511 (stating that a taxpayer may rely           
          on the tax shown on an untimely return for purposes of                      
          determining estimated tax payments).                                        
               In a further attempt to justify its holding, the majority              
          expresses concern that taxpayers “would be able to negate the               
          addition to tax simply by filing a return for that year that                
          showed a tax liability less than the quarterly estimated payments           
          actually made or, if none had been made, that showed a zero tax             
          liability.”  Majority op. p. 28.  As Judge Vasquez’s concurring             
          opinion emphasizes, long-standing precedent authorizes us to find           
          that a return is invalid if the taxpayer does not make an honest            
          and reasonable attempt to satisfy the requirements of the tax               
          law.  Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 180                  
          (1934); Florsheim Bros. Drygoods Co. v. United States, 280 U.S.             
          453, 462 (1930); Beard v. Commissioner, 82 T.C. 766, 777 (1984),            
          affd. 793 F.2d 139 (6th Cir. 1986).  Thus, if the majority found            
          that petitioner’s return was filed with the intent to avoid the             






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