Patrick T. McGuinness - Page 9




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          22, 2005, the date of his deemed claim, petitioner is not                   
          entitled to a refund (or a credit) of his 2001 overpayment.  Sec.           
          6511(b)(2)(B).                                                              
               Petitioner contends that the substitute for return under               
          section 6020(b) should be “counted” as his return.  However, this           
          Court has expressly held that a substitute for return prepared by           
          the Commissioner pursuant to section 6020(b) does not constitute            
          a return filed by the taxpayer for purposes of section 6511.                
          Healer v. Commissioner, supra at 321-324.                                   
               Petitioner also contends that his delinquency was caused               
          principally by his confusion regarding how a $5,000 option                  
          payment on a movie contract should be reported.  Although we are            
          well aware of the intricacies of the Internal Revenue Code, the             
          fact remains that, at the very least, petitioner could have                 
          timely filed his return and amended it later when he had resolved           
          the reporting matter, particularly given that the option payment            
          was less than 5 percent of his total income.6                               
               Finally, petitioner contends that it would be unfair,                  
          particularly in view of respondent’s acceptance of his delinquent           
          return and complete concession of the deficiency and additions to           
          tax, to bar payment of his refund.  Suffice it to say that the              
          United States Supreme Court has clearly instructed that                     
          limitations on allowance of refunds and credits prescribed by               


               6  We recall that petitioner’s return was prepared by a                
          C.P.A. affiliated with an accounting firm.                                  





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