-6-
The Court of Appeals for the Ninth Circuit reversed the
taxpayer’s conviction for willful failure to file, holding that
the forms containing all zeros were “returns” for section 7203
purposes because the zeros constituted information from which the
tax could be computed. Id. The court noted that a document with
false or misleading figures may convey false information (i.e.,
zero may not be the taxpayer’s correct tax liability), but it
does convey information. Id. at 76. The court found that the
documents therefore should be treated as returns. Id.
The Court of Appeals’s view that a return containing all
zeros constitutes a return is contrary to the view of several
other courts that have considered the question. See United
States v. Mosel, 738 F.2d 157 (6th Cir. 1984); United States v.
Smith, 618 F.2d 280 (5th Cir. 1980); United States v. Rickman,
638 F.2d 182 (10th Cir. 1980); Cabirac v. Commissioner, 120 T.C.
163, 168-170 (2003); Halcott v. Commissioner, T.C. Memo. 2004-
214.
As Long involved a different provision of the Code, it is
not squarely on point. Long involved the taxpayer’s appeal from
a criminal conviction for willful failure to file under section
7203. United States v. Long, supra. Here, petitioner contests
applying a civil failure to file addition to tax under section
6651(a)(1).
In addition, in Long, the IRS had not saved any documents
taxpayer had submitted but sought to prosecute the taxpayer for
willful failure to file. Id. The taxpayer provided “facsimiles”
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