Ozie R. M. Quarterman - Page 9

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               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.                                     



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