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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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