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estimated tax penalty, it could conclude that the return is
invalid. Yet, the majority does not make such a finding.
Undeterred by an unambiguous statute and a valid return, and
citing Evans Cooperage Co. v. United States, 712 F.2d 199, 204
(5th Cir. 1983), a readily distinguishable case, the majority
summarily reasons that its “decision is consistent with the
‘objective of the safe harbor provision’”. Majority op. p. 29.
In Evans Cooperage, the taxpayer contended that the
calculation of the estimated tax penalty should be based on its
amended return, rather than its timely filed original return.
The court held that the phrase “return of the corporation for the
preceding taxable year”, in section 6655(d)(1), refers to the
timely filed return for that year and not any subsequently filed
amended return. Id. at 204. We are not faced, however, with a
question of which return should be taken into account because
petitioner did not file an amended return. We simply must
determine whether to accept or disregard petitioner’s valid
return.
The majority acknowledges that petitioner’s case is the
“exact opposite of that referred to in Evans Cooperage”.
Majority op. p. 29 (emphasis added). I agree. In Evans
Cooperage, the court required the taxpayer to use its original
return to calculate the penalty. The majority, on the other
hand, states that petitioner “waived his right” relating to the
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