Fortunato J. Mendes - Page 48

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          only return he filed and is prohibited from using such return to            
          calculate the penalty.  Majority op. p. 29.                                 
               If Evans Cooperage is to be cited for anything, it should be           
          cited for the proposition that the Court is obligated to follow             
          the statute.  Indeed, in response to one of petitioner’s                    
          contentions, the court stated:                                              
               It may be inequitable * * * to assess a penalty for                    
               underpayment of estimated tax, that is based upon the                  
               originally mistaken figure of income for the year,                     
               rather than upon the actual income for the year as                     
               ultimately determined.  However, Congress unambiguously                
               has provided otherwise, and the provision, if indeed                   
               inequitable, is for Congress to amend, not the courts.                 
               [Evans Cooperage Co. v. United States, supra at 205;                   
               fn. ref. omitted and emphasis added.]                                  
          Similarly, we are required to follow statutory mandates and                 
          address, rather, than “disregard”, salient facts.  If there is a            
          perceived problem with the statute, Congress must address the               
          matter.                                                                     
               LARO and MARVEL, JJ., agree with this dissenting opinion.              




















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