Jeffrey K. Ramsdell - Page 7

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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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