- 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.
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