- 9 - Therefore, we find that petitioner and Mr. Quarterman did not file a joint return for 1995.5 On the basis of that finding, we conclude that the notice was timely issued. See section 6501(c)(3), which provides, in pertinent part: “In the case of failure to file a return, the tax may be assessed * * * at any time.” See also Espinoza v. Commissioner, supra (taxpayer’s motion for summary judgment claiming that proposed deficiencies were barred by expiration of the statute of limitations on assessments denied where the evidence indicated that no returns had been filed for the years in dispute).6 We also reject petitioner’s argument that the notice is “insufficient” (which we interpret to mean invalid for purposes of section 6212(b)(2)) because it was not a “joint notice” issued to both petitioner and Mr. Quarterman. Although petitioner and 5 Because we base our finding upon a preponderance of the evidence, assignment of the burden of proof under sec. 7491 is unnecessary. See FRCG Inv., LLC v. Commissioner, T.C. Memo. 2002-276, affd. on this issue 89 Fed. Appx. 656 (9th Cir. 2004); Polack v. Commissioner, T.C. Memo. 2002-145 n.7, affd. on this issue 366 F.3d 608, 613 (8th Cir. 2004). 6 Petitioner does not suggest that her hand delivery of the 1995 Form 1040 to counsel for respondent on Oct. 29, 2003, constituted the filing of a valid 1995 return. We agree that hand delivery of a return to counsel for respondent does not constitute the filing of that return. See Espinoza v. Commissioner, 78 T.C. 412, 419-420 (1982); sec. 1.6091-2(d)(1), Income Tax Regs. (On Sept. 16, 2004, sec. 1.6091-2(d)(1), Income Tax Regs., was amended prospectively by T.D. 9156, 2004-42 I.R.B. 669, 670.) Therefore, that “filing” did not commence the running of the 3-year statute of limitations on assessments for 1995 pursuant to sec. 6501(a). But even if it had, it would be of no consequence in this case since it occurred well after the issuance of the notice on Apr. 1, 2002.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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