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for return “from his own knowledge and from such information as
he can obtain through testimony or otherwise.” This section,
however, is permissive, not mandatory. United States v.
Stafford, 983 F.2d 25, 27 (5th Cir. 1993); Roat v. Commissioner,
supra at 1381. Thus, although section 6020(b) allows the
Commissioner to prepare a substitute for return for a nonfiling
taxpayer, it is firmly established that section 6211(a) does not
require the Commissioner to prepare a substitute for return
before determining a deficiency and issuing a notice. Geiselman
v. United States, 961 F.2d 1, 5 (1st Cir. 1992); Schiff v. United
States, supra at 832; see also Roat v. Commissioner, supra at
1381-1382 (even when a substitute for return is prepared for a
taxpayer, the Commissioner need not use that “return” in
determining the taxpayer’s deficiency under section 6211(a)).
As section 6211(a) makes plain, only “if a return was made
by the taxpayer” does the tax shown on a return figure in the
Commissioner’s determination of a deficiency. When a taxpayer
fails to file a return, as petitioner here, “it is as if he filed
a return showing a zero amount for purposes of assessing a
deficiency.” Schiff v. United States, supra at 832. In such a
case the deficiency is “the amount of tax due.” Laing v. United
States, supra.
Petitioner argues that section 301.6211-1(a), Proced. &
Admin. Regs., is invalid because it is inconsistent with section
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Last modified: May 25, 2011