-118-
therefore Taylor Securities, not Anglo-American that was--until
today, at least--the controlling pre-regulation case. And Taylor
Securities accommodated the Commissioner’s need for some point at
which he could assess delinquent taxes owed by a foreign
corporation that had failed to file its own return. Taylor
Securities and its progeny were precisely the sort of case-by-
case development of reasonableness that one would expect in
response to the absence of a specific mention of time in section
882.
Where our Opinion leaves the Commissioner after today’s
ruling is very unclear.9 Current IRS practice, even when the
Commissioner prepares a substitute return under section 6020(b),
is to encourage nonfilers to prepare and file a return, if for no
other reason than to stop the addition to tax for failure to
timely file. See sec. 6651(g)(1), (a)(1); In re Rank, 161 B.R.
406 (N.D. Ohio 1993) (noting number of exceptions to recognition
of substitute return, giving taxpayer continuing incentive to
file); Saltzman, IRS Practice & Procedure, par. 4.02 (citing
examples in Code where taxpayer may file a return after
substitute return prepared to challenge Commissioner’s
9 The majority seems to soften its analysis by suggesting at
a couple points that the Commissioner can still enforce section
882 by again preparing substitute returns. See majority op. pp.
65 note 22, 75. But the Opinion also states that this cannot be
an “absolute and rigid rule.” Majority op. p. 74 note 28.
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