Richard M. Downing - Page 26




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               The copies of the incompletely executed Form 1040X,                    
          purporting to amend Astrid Downing’s single 1995 return and claim           
          joint filing status for petitioner and Astrid Downing, show                 
          $8,728 as “Amount of tax paid with original return plus                     
          additional tax paid after it was filed”.  Respondent’s records              
          show that this amount was posted to Astrid Downing’s 1995 account           
          as a “PAYMENT WITH RETURN”.11  Petitioner relies upon this entry            
          as establishing that the 1995 return was filed and processed by             
          the IRS.  We disagree.  At most, this entry might suggest that a            
          joint return was tendered with payment and that an IRS employee             
          accepted the payment.  Such action by an IRS employee, however,             
          would not waive the statutory requirements for a valid return.              
          See Lucas v. Pilliod Lumber Co., 281 U.S. 245 (1930); Olpin v.              
          Commissioner, supra at 1301; Smart v. Commissioner, T.C. Memo.              
          1987-279; Wallace v. Commissioner, T.C. Memo. 1975-133.                     
               Petitioner places great weight on the preliminary                      
          assessments of Appeals Officer Dugan, who first handled                     
          petitioner’s Appeals hearing.  In an undated internal memo and in           
          a letter to petitioner’s representative Appeals Officer Dugan               
          stated that she believed, on the basis of her preliminary                   
          investigation, that petitioner and Astrid Downing had filed a               




               11 In the final notice of determination, the Appeals Office            
          concluded that petitioner should be given credit for the $8,728             
          payment.                                                                    





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