Dudley Joseph Callahan and Myrna Dupuy Callahan - Page 17




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          better developed, we cannot say as a matter of law that                     
          petitioners have taken a frivolous position or that they desired            
          to delay or impede the administration of Federal income tax laws.           
               We next turn to petitioners’ 2003 Form 843.  Petitioners do            
          not claim that the Form 843, which is a claim for refund, is not            
          an income tax return.  Nevertheless, we note that documents that            
          are filed to obtain a refund of tax have consistently been held             
          to be purported returns.  Kelly v. United States, 789 F.2d 94, 97           
          (1st Cir. 1986); Sullivan v. United States, 788 F.2d 813, 815               
          (1st Cir. 1986); Davis v. United States, 742 F.2d 171, 173 (5th             
          Cir. 1984); see Farenga v. United States, 93 AFTR 2d 1775, 2004-1           
          USTC par. 50,240 (N.D.N.Y. 2004) (a collection review proceeding            
          in U.S. District Court in which the Commissioner imposed the                
          frivolous return penalty on account of both a Form 1040 and a               
          Form 843).                                                                  
               Petitioners’ Form 843 requests a refund of “every penny you            
          collected from us plus interest.”  There is little explanation of           
          the amounts collected, or why that collection was improper.  They           
          also claim a refund for all interest, penalties, and over-                  
          assessments the IRS made each year.  They further claim interest,           
          and “damages at twice the total amount as directed by Congress’             
          Taxpayer Bill of Rights III, part IV.”  The Form 843 clearly does           
          not contain information on which the substantial correctness of             
          petitioners’ refund claim may be judged.                                    







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