Thomas G. Brenner - Page 11

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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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