-5-
reasonable cause and not to willful neglect. See Higbee v.
Commissioner, supra.
I. Whether Petitioner’s 1040 Document Was a Return
Section 6651(a)(1) provides for an addition to tax in the
event a taxpayer fails to file a timely return, unless it is
shown that such failure is due to reasonable cause and not due to
willful neglect. Sec. 6651(a)(1). “Return” is not defined in
section 6651, nor in any other section of the Code. See secs.
6011, 6651; Swanson v. Commissioner, 121 T.C. 111, 122-123
(2003). The Court of Appeals for the Ninth Circuit, to which the
present case is appealable, has held that a Form 1040 is a return
under the criminal statute, section 7203 (willful failure to file
returns), where the document contained all zeros, attached
constitutional arguments, and was signed under penalties of
perjury. United States v. Long, supra.
In Long, the Court of Appeals for the Ninth Circuit was
faced with a situation in which the practice of the IRS, as then
in effect, was not to keep copies of documents that it considered
invalid returns, nor to retain records of whether such documents
had been filed. Having no record whether the taxpayer had filed
a return for any of the years in question, the Federal Government
sought to impose criminal penalties on him for willful failure to
file income tax returns. Id. at 75. The taxpayer introduced
“facsimiles” of the forms he claimed to have filed. Id. The
facsimiles were completed with all zeros and had a tax protest
tract attached. Id.
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