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liabilities for the years in question and assessed them prior to
2001.7 Specifically, petitioner seems to claim that respondent
had filed substitute-for-returns (SFRs) on behalf of petitioner
for the years 1992 and 1993, long before the commencement of the
2-year period preceding the filing of the bankruptcy petition.
The dates on which those SFRs were made, according to petitioner,
are the relevant reference dates in the determination of when the
returns were filed for purposes of section 523 of the Bankruptcy
Code.8
To avoid the application of section 523(a)(1)(B)(ii) of the
Bankruptcy Code, a taxpayer must file a “return” prior to the
commencement of the 2-year period preceding the filing of the
bankruptcy petition. See 11 U.S.C. sec. 523(a)(1)(B)(ii). We
have recently held that SFRs do not constitute returns for
purposes of section 523(a)(1)(B) of the Bankruptcy Code unless
signed by the taxpayer. See Swanson v. Commissioner, supra at
7 In his motion for summary judgment, respondent fails to
respond to petitioner’s argument. It appears that respondent is
convinced that we may not review these issues since, he argues,
they were not raised in the sec. 6330 hearing. See, e.g., Magana
v. Commissioner, 118 T.C. 488 (2002). Contrary to respondent’s
contention, however, it appears that petitioner did raise the
issue of prior notice in the request for a collection due process
hearing. Accordingly, we find that this matter is properly
before us.
8 Petitioner states in his amended petition that “the IRS
had in fact knowledge and assessment data for the 1992 [and 1993]
tax [years], as evidenced by a subsequent (1994) tax year ‘Notice
of Levy * * *’ dated 08.16.98.” (Emphasis omitted.)
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