Lead Opinion
By nоtice of deficiency dated May 3, 1995 (the notice), respondent determined a deficiency in and additions to petitioner’s Federal income tax for calendar year 1988 (sometimes, the audit year) as follows:
Additions to tax
Deficiency Sec. 6651(a)(1) Sec. 6653(a)(1) Sec. 6654
$8,487 $2,122 $424 $484
The adjustments giving rise to the deficiency are respondent’s inclusion in income of amounts reported on information returns as having been paid to petitioner during 1988 (sometimes, the income items), and his imposition of the 10-per-cent additional tax on early distributions from qualified retirement plans, offset by his allowance of the standard deduction and one personal exemption. In addition, respondent denies petitioner’s claim, raised at trial, to deductions, losses, and additional personal exemptions on a 1988 Form 1040, U.S. Individual Income Tax Return (the 1988 return), that petitioner filed on or about May 14, 1997, more than 2 years after the notice was issued.
The issues for decision are whether, for the audit year, petitioner: (1) Must include in gross income $40,347, consisting of dividends, interest, capital gains, and a distribution from a retirement account; (2) is entitled to itemized deductions of $11,850; (3) sustained a deductible loss of $6,724 in connection with his law practice; (4) sustained deductible losses totaling $29,455 in connection with the management of certain rental real property; (5) is entitled to dependency exemptions for three children (the dependency exemptions); (6) is liable for the 10-percent additional tax on early distributions from qualified retirement plans under section 72(t); and (7) is liable for additions to tax under (A) section 6651(a)(1) for failure to timely file the 1988 return, (B) section 6653(a)(1) for negligence, and (C) section 6654 for failure to pay estimated income tax.
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. All dollar amounts have been rounded to the
FINDINGS OF FACT
Some facts are stipulated and are so found. The stipulation of facts, with accompanying exhibits, is incorporated herein by this reference.
At the time the petition was filed, petitioner was incarcerated at the Maryland House of Corrections in Jessup, Maryland.
Petitioner has been continuously incarcerated since June 17, 1988, the date upon which he was аrrested for the murder of an individual who was scheduled to testify against him regarding a cocaine trafficking charge. He was ultimately tried for and convicted of first degree murder and sentenced to life imprisonment with no chance of parole.
Petitioner was a lawyer for 20 years. He was disbarred on October 23, 1991, as a result of his convictions.
Petitioner paid no taxes and filed no return for the audit year before the issuance of the notice. The additions to gross income set forth in the notice were reported on information returns (Forms 1099 or, in the case of Merrill Lynch Pierce Fenner & Smith, Inc. (Merrill Lynch), an equivalent tax reporting statement) as follows:
Payor Classification Amount
Merrill Lynch Short-term capital gain1 $27,573
Bank of New York Short-term capital gain1 2,802
First Investors Tax Exempt Fund Interest to cn CD
Sovran Bank, NA Interest h CO 00
Commonwealth Savings & Loan Interest Ol
Merrill Lynch Dividends crc ^ O
Payor Classification Amount
National Bank of Washington Gross distribution from retirement account 9,022
Total 40,347
On or about May 14, 1997, more than 2 years after the notice was issued, petitioner filed the 1988 return. On Schedules B, Interest and Dividend Income, and D, Capital Gains and Losses, he listed all of the income items contained in the notice.
On Schedule A, Itemized Deductions, of the 1988 return, petitioner listed the following itemized deductions:
Real estate taxes . $1,420
Deductible points (interest) . 10,430
Total . 11,850
On Schedule C, Profit or Loss From Business, petitioner listed his principal business as “Lawyer”, and, on a cash basis of accounting, showed zero gross recеipts and total deductions of $6,724, for a net loss of $6,724.
On Schedule E, Supplemental Income (plus attachments), petitioner listed nine separate rental properties. He reported a loss on each of the properties, and, on four of the properties, he reported zero rental income. He reported a total loss of $29,455 with respect to said properties.
Petitioner also claimed four personal exemptions: one for himself and one for each of three children.
The combination of personal exemptions, itemized deductions, and losses resulted in petitioner’s reporting zero taxable income and zero tax due.
In the notice, respondent allowed petitioner one personal exemption of $1,950 and the $3,000 standard deduction appropriate for his filing status, married filing separately. In
OPINION
I. Amounts Included in Gross Income
A. Identical Amounts Reported as Income by Petitioner
On thе 1988 return, petitioner included in income all of the items that are contained in the notice’s adjustment for additional income. During the trial, however, petitioner stated that he was contesting all but one of the income items: the $138 of interest from Sovran Bank.
It has been held repeatedly that positions taken in a tax return signed by a taxpayer may be treated as admissions. See Waring v. Commissioner,
B. Failure To Challenge Income Adjustments on Brief
Other than making a vague assertion that he “was requires [sic] to and fully complied with the filing of * * * [the 1988 return] consistent with the 1099 information” (which suggests a mistaken belief that such reporting was required even though petitioner disputed the information), on brief, petitioner challenges only one of the income items: the short-term capital gain from the sale of 240 shares of IBM (the IBM stock).
C. Sale of the IBM Stock — Alleged Theft of Sale Proceeds
Petitioner argues that there is no proof that Merrill Lynch sold the IBM stock at petitionеr’s request or that petitioner received the proceeds of that sale. During the trial, petitioner acknowledged that the Merrill Lynch tax reporting statement for 1988, together with the monthly statements for 1988 (all of which were placed in evidence during the trial) (the Merrill Lynch statements) constitute a copy of his 1988 account activity with Merrill Lynch. The monthly statement for June 1988 shows that, on June 17, 1988 (the date of petitioner’s arrest and incarceration), petitioner’s account was credited with $27,573 representing the proceeds from the sale of the IBM stock (the IBM sale proceeds). It further shows that, after the sale, on June 21, 1988, a check for $22,960 was written on the account and identified as a “withdrawal” from the account.
Whether or not Merrill Lynch sold the IBM stock at petitioner’s request, there is no dispute that the stock was in fact sold and that the IBM sale proceeds were credited to petitioner’s Merrill Lynch account.
Pursuant to section 61(a)(3), gross income includes “[g]ains derived from dealings in property”. Section 1.446-1(c)(1)(i), Income Tax Regs., requires that, “under the cash receipts and disbursements method in the computation of taxable income, all items which constitute gross income * * * are to be included for the taxable year in which actually or constructively received.” Section 1.451-2(a), Income Tax Regs., provides that income is constructively received by a taxpayer “in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time”. Pursuant to that regulation, the IBM sale proceeds were constructively received by petitioner on June 17, 1988, when they were credited to his Merrill Lynch account. Moreover, because petitioner has
Petitioner’s primary argument for omitting the IBM sale proceeds from his 1988 gross income is that he never received the money. In essence, he alleges that the IBM sale proceeds were taken from his account by a Merrill Lynch employee. By alleging nonreceipt of the IBM sale proceeds, including the portion that may have been represented by the $22,960 “withdrawal” from his Merrill Lynch account, petitioner is, in effect, claiming a 1988 thеft loss of the IBM sale proceeds rather than their noninclusion in income.
Thomas P. McDonnell, a Merrill Lynch employee for 22 years, who (at the time of the trial) was a Merrill Lynch vice president and administrative manager responsible for certain “back office” operations that occur in an office, testified that, pursuant to Merrill Lynch’s normal practice, the IBM stock would have been sold upon the placement of an order to sell (either by telephone or in writing) by the legal or beneficial owner of the stock; i.e., petitioner. Thereafter, the sale of the stock would have been verified with petitioner by telephone, and a confirmation of the sale would have been mailed to him. Mr. McDonnell further testified that, in accordance with standard brokerage industry policy and standard Merrill Lynch firm policy (and absent specific instructions to the contrary), if petitioner had requested payment of the sale proceeds from a sale of securities, a check would have been made payable to him as the owner of record on the statement.
Section 165 allows an individual taxpayer to deduct a theft loss in the year during which the taxpayer discovers such loss. See sec. 165(a), (c)(1), (e). Petitioner bears the burden of proving that a theft (and not, for instance, merely a mysterious disappearance of the property) has occurred and that
D. Conclusion
We sustain respondent’s determination to include $40,347 in petitioner’s gross income for the audit year, and we hold that petitioner is not entitled to a deduction for loss of the IBM sale proceeds of $27,573 as an offset to that income inclusion.
II. Schedule A Itemized Deductions
We must decide whether petitioner is entitled to Schedule A itemized deductions for the audit year consisting of real estate taxes of $1,420 and “deductible points” (mortgage interest) of $10,430. The 1988 return indicates that those
Petitioner has failed to substantiate his payment, during 1988, of any real property taxes with respect to his personal residence; and, except for an undated, handwritten listing of mortgage payments due with respect to various properties, including his personal residence, and a computer printout which appears to list mortgage payments due on that residence for March, April, and May 1992, petitioner has failed to produce any receipts or other evidence to corroborate his return position that he made a 1988 payment of “deductible points”. Petitioner did not claim a deduction for mortgage interest on what he claims is his 1987 return (the 1987 Form 1040),
Next, we turn to the issue of whether petitioner sustained a 1988 deductible loss of $6,724 associated with his law practice.
Here, as in the case of petitioner’s Schedule A itemized deductions, petitioner has offered no evidence to substantiate the items (mortgage interest, utilities, telephone, depreciation, laundry and cleaning, and bar membership dues) that constitute the alleged deductible expenses. Here, too, petitioner has failed to provide the minimal substantiation of the alleged expenses that would permit us to estimate the allowable deductions pursuant to Cohan v. Commissioner, supra. Therefore, we reject petitioner’s claim, raised at trial, to a Schedule C loss.
IV. Schedule E Losses From Real Property Rentals
Petitioner’s 1988 Schedule E indicates that, during the audit year, petitioner owned nine rental properties, each of which generated a loss for the year. Four of those properties generated zero rental income, including the property with the greatest loss and the most expenses. The Schedule E attached to the 1987 Form 1040 indicates that four of the properties that generated losses in 1988 also generated losses in 1987 and that two of the properties that produced zero rental income in 1988 did the same in 1987.
The holding of real property for rental purposes normally constitutes the use of the property in a trade or business. See Lagreide v. Commissioner,
There is no evidence in the record that any of the properties listed in the 1988 return has ever generated a profit, or that petitioner expected that they would ever become profitable, either individually or as a group. To the contrary, petitioner, on brief, indicates that he never believed that his rental properties would become profitable. For example, in defense of his nonpayment of estimated taxes for the audit year, petitioner states in his opening brief:
Petitioner cannot be held liable for failing to file an estimated tax return because the Petitioner did not owe any taxes and has never owed any taxes to the Internal Revenue Service in the more than 50 yеars he has been filing income taxes. The deductions Petitioner has used for this tax year and all other tax years have always [been] in excess of the income he has earned and therefore Petitioner * * * had not [sic] duty to file any estimated income tax. [Emphasis added.]
Similarly, in his reply brief, petitioner states:
There was not [sic] need to pay estimated tax since I have never owed the IRS an estimated tax in 20 years of practicing law and renting properties.
The foregoing statements are tantamount to an admission that, regardless of the amount of (1) dividends, interest and1 or capital gains attributable to his Merrill Lynch account and/or other sources and (2) profits from his law practice (for which petitioner did report a small profit for 1987), petitioner always anticipated that losses generated by his rental activities would be sufficient to offset such income, thereby resulting in no tax liability to petitioner. Moreover, for the audit year, the reported expenses attributable to petitioner’s rental
V. The Dependency Exemptions
Section 151(a) and (c)(1) allows deductions for exemptions for dependents. In order to be entitled to dependency exemptions for three of his children, petitioner must show that each child meets the statutory definition of “dependent”, which, under section 152(a)(1), includes a son or daughter over half of whose support, for the taxable year, is provided by the taxpayer. Under section 151(c)(1)(B), each child must be either under 19 years of age or a student under 24 years of age, at yearend.
Petitioner offered no evidence that the foregoing statutory requirements were satisfied for the audit year. Therefore, we reject petitioner’s claim, raised at trial, to deductions for three dependency exemptions.
VI. Respondent’s Section 72(t) Determination
Section 72(t) provides, in pertinent part, as follows:
SEC. 72(t). 10-Percent Additional Tax on Early Distributions From Qualified Retirement Plans.—
(1) Imposition of additional tax. — If any taxpayer receives any amount from a qualified retirement plan * * *, the taxpayer’s tax * * * for the taxable year in which such amount is received shall be increased by an amount equal to 10-percent of the portion of such amount which is includable in gross income.
Petitioner admits receipt of $9,022 from the National Bank of Washington during the audit year, and he further admits that the money was distributed from “a 401 or some type of retirement account”, indicating his acknowledgment that the distribution is subject to section 72(t)(l). Petitioner argues, however, that the $9,022 constituted a net distribution and that the bank withheld the 10-percent tax from the gross amount of the withdrawal. Petitioner further alleges that it is common practice for banks to collect the 10-percent additional
Once again, other than his self-serving testimony, petitioner has offered no evidence in support of his position, no bank statements or other evidence that would corroborate his assertion that the tax was withheld or that it is common practice (and was common practice during the audit year) for banks to withhold the tax. This Court is not bound to accept a taxpayer’s self-serving, unverified, and undocumented testimony. Shea v. Commissioner,
VII. Additions to Tax
A. Respondent’s Section 6651(a)(1) Determination
Section 6651(a)(1) provides for an addition to tax in the event a taxpayer fails to file a timely return (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect. The amount of the addition is equal to 5 percent of the amount required to be shown as tax on the delinquent return for each month or fraction thereof during which the return remains delinquent, up to a maximum addition of 25 percent for returns more than 4 months delinquent.
The 1988 return was not filed until on or about May 14, 1997, more than 8 years after the April 17, 1989, due date. See sec. 6072(a).
B. Respondent’s Section 6653(a)(1) Determination
Section 6653(a)(1) imposes an addition to tax equal to 5 percent of the entire underpayment if any portion of such underpayment is due to negligence or intentional disregard of rules or regulations (without distinction, negligence). An underpayment, for purposes of section 6653(a), is the amount by which the tax liability exceeds the tax shown on a timely filed return. Secs. 6653(c)(1), 6211(a). Inasmuch as the 1988 return was not timely filed, the amount shown on a timely filed return is zero, and the underpayment equals the entire tax liability. Emmons v. Commissioner,
Moreover, we reach the same result even if we view the issue to be whether petitioner had a reasonable basis for the
We sustain respondent’s determination under section 6653(a)(1).
C. Respondent’s Section 6654 Determination
1. Introduction
Section 6654 provides for an addition to tax in the event of an underpayment of a required installment of individual estimated tax. Sec. 6654(a) and (b). As relevant to this case, each required installment of estimated tax is equal to 25 percent of the “required annual payment”, which in turn is equal to the lesser of (1) 90 percent of the tax shown on the
There are two mechanical exceptions to the applicability of the section 6654 addition to tax. First, as relevant to this case, the addition is not applicable if the tax shown on the individual’s return for the year in question (or, if no return is filed, the individual’s tax for that year), reduced for these purposes by any allowable credit for wage withholding, is less than $500.
Petitioner argues that he “cannot be held liable for failing to file an estimated tax return because the Petitioner did not owe any taxes”. Respondent’s deficiency determination for the audit year, which we sustain in full herein, shows that, contrary to petitioner’s argument, petitioner did, in fact, owe taxes for the audit year. That does not dispose of the matter, however. There remains the issue of whether petitioner may rely on having satisfied the requirement of section 6654(d)(1)(A) and (B) thаt the amount of each of his estimated tax installments for the audit year (in this case, zero) was equal to 25 percent of the lesser of (1) 90 percent of the tax shown on his return for that year or, alternatively, (2) 100 percent of the tax shown on his return for the prior year, 1987.
The 1988 return, filed on or about May 14, 1997, shows a zero tax liability for that year. If the 1988 return constitutes a valid return for purposes of section 6654(d)(l)(B)(i), there can be no underpayment of a required installment of estimated tax since there are no required installments due when there is no tax liability shown on the return as filed; i.e., 25 percent of zero equals zero.
We have repeatedly held that a taxpayer’s estimated tax liability is based upon the taxpayer’s tax liability as stated on the original tax return as filed, and not upon the notice of deficiency amount or the ultimate tax liability (here, one and the same and referred to, for convenience, as the ultimate tax liability). See Gleason v. Commissioner,
None of the above-cited authorities address circumstances in which the taxpayer’s original return was filed after a notice of deficiency had been issued. In this case, the 1988 return was filed more than 2 years after issuance of the notice (May 14, 1997, versus May 3, 1995) and almost 22 months after the filing of the petition on July 17, 1995. Under those circumstances we will disregard the 1988 return as we do not consider it to be a “return” for purposes of section
In Evans Cooperage Co. v. United States,
This objective of the safe harbor provision — to provide a predictable escape from any possible penalty liability — would be defeated if penalties for underpayment of estimated taxes during the year wеre based, not on the easily determinable amount reflected on the preceding year’s return, but instead upon the ultimate tax liability, possibly determined by adverse tax audit, a year or so after the tax year for * * * which the estimated tax installments were paid. * * * [Id. at 204.]
“Safe harbor” also is an apt description of the identical preceding-year-return rule applicable to individuals, sec. 6654(d)(1)(B)(ii), and it is an apt description of the rule,
Our decision is consistent with the “objective of the safe harbor provision” referred to by the Court of Appeals in Evans Cooperage. Petitioner’s failure to file a return prior to respondent’s issuance of the notice presents us with a situation that is the exact opposite of that referred to in Evans Cooperage, where the filing of returns preceded the audit. Here, upon issuance of the notice, it is the tax liability determined by respondent that is the “easily determinable amount” and it is the return amount that is “possibly determined” in somе later year. In effect, petitioner, by not filing the 1988 return prior to issuance of the notice, has waived his right to the “predictable escape from any possible penalty liability” that would have been afforded by that return.
Our decision is also consistent with Congress’s evident plan for the application of section 6654. Rules governing the assessment, collection, and payment of the section 6654 addition are found in section 6665. In pertinent part, section 6665(a) provides that (1) the section 6654 addition is to be paid upon notice and demand and is to be assessed, collected, and paid in the same manner as taxes, and (2) references in the Internal Revenue Code to “tax” imposed shall be deemed also to refer to the addition to tax.
The deficiency procedures prescribe a comprehensive set of rules that, with limited exceptions, the Commissioner must follow before he is free to assess and collect certain taxes, including the income tax. The term “deficiency” is defined in section 6211(a)(1)(A). Generally, a deficiency is the excess of “the tax imposed” over the tax shown on the taxpayer’s return if the taxpayer makes a return showing an amount of tax. Id. Obviously, the “return” referred to in that definition must be a return made before the Commissioner determines a deficiency based upon that return. If he determines that there is a deficiency, the Commissioner is authorized by section 6212(a) to mail notice thereof to the taxpayer by certified or registered mail. If the taxpayer has made no return by the time the Commissioner mails him notice of a deficiency, then, for purposes of detеrmining the tax shown on his return, the taxpayer is deemed to have made a return showing zero tax.
In short, the term “deficiency” includes the section 6654 addition in a no-return situation, and, once the Commissioner
We shall disregard the 1988 return for purposes of determining whether petitioner satisfies the return-filed safe harbor of section 6654(d)(1)(B)(i).
Because petitioner made no estimated tax payments for the audit year, he necessarily failed the alternative safe harbor of section 6654(d)(1)(B)(i) to make estimated tax payments equal to “90 percent of the tax” (i.e., his ultimate tax liability) for the audit year.
3. Satisfaction of Section 6654(d)(1)(B)(ii)
As noted supra in Section II, the trial record does not establish that petitioner ever filed a return for 1987. Because there is no return “for the preceding taxable year”, petitioner
4. Conclusion
We sustain respondent’s determination under section 6654.
Decision will be entered for respondent.
Reviewed by the Court.
Notes
Sec. 7491, which, under certain circumstances, shifts the burden of proof to the Commissioner, is inapplicable because the examination in this case began before July 22, 1998, the effective date of that section. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3001(c), 112 Stat. 727.
Petitioner has failed to set forth objections to respondent’s proposed findings of fact. Accordingly, we conclude that petitioner concedes that respondent’s proposed findings of fact are correct except to the extent that petitioner’s findings of fact are clearly inconsistent therewith. See Jonson v. Commissioner,
Petitioner had previously been tried for and convicted of distribution of cocaine and carrying a pistol without a license.
In fact, petitioner double counted certain of the income items. Respondent has not sought to add the duplicated income to his proposed adjustment.
During the trial, petitioner admitted that the $9,022 received from the National Bank of Washington constituted a premature distribution from a qualified retirement account. On brief, he challenges only the imposition of the sec. 72(t) 10-percent additional tax on that distribution.
Mr. McDonnell testified that, because Merrill Lynch was required to retain records of customer transactions for only 7 years, he was unable to produce copies of the transaction confirmation slip, the canceled check, or any other records specifically related to the 1988 sale of petitioner’s 240 shares of IBM. In fact, he was “amazed” that the 1988 Merrill Lynch statements pertaining to petitioner’s account were still available in Merrill Lynch’s microfiche library.
We have received into evidence a copy of the 1987 Form 1040. That document is not signed by petitioner, but it is signed by a return preparer (petitioner’s attorney) under what appears to be a date of Aug. 2, 1990. It carries the annotation “client copy”. We shall use that document for limited purposes, as described below. We make no finding that the original of that document was ever filed by petitioner.
Petitioner’s reporting of zero gross receipts from his law practice during the audit year (the first 5l/2 months of which preceded his incarceration) indicates that the loss may be disallowed on the alternative ground that, during that year, petitioner did not conduct his law practice with a bona fide intention of making a profit and may, in fact, have either abandoned or at least temporarily discontinued the practice after 1987 when, according to the 1987 Form 1040, he earned a small ($1,698) profit on very low ($2,884) gross receipts. As discussed more fully infra in Section IV, losses incurred by an individual in connection with a purported trade or business are not allowable in the absence of a bona fide profit motive.
SEC. 165. LOSSES.
(a) General Rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.
‡ ‡ ‡ ‡ *
(c) Limitation on Losses of Individuals. — In the case of an individual, the deduction under subsection (a) shall be limited to-
ll) losses incurred in a trade or business;
There is no evidence that petitioner timely sought to extend the Apr. 17 due date.
Income from several of the same investments was listed on the 1987 Form 1040.
Under sec. 6654(g)(1), wage withholding credits are treated as payments of estimated tax.
Effective for taxable years beginning after Dec. 31, 1997, the threshold amount is $1,000. Taxpayer Relief Act of 1997, Pub. L. 105-34, sec. 1202(a), 111 Stat. 994.
There is no inconsistency between our treating petitioner’s reporting of the amounts listed on Schedules B and D of the 1988 return as an admission that those amounts are includable in 1988 gross income, see the discussion supra in Sec. I.A., and our finding herein that the 1988 return is not a “return” for purposes of sec. 6654(d)(1)(B)(i). The former conclusion is based upon caselaw which treats a taxpayer’s return position as an admission by the taxpayer that that position is correct. That characterization of a taxpayer’s return position is not contingent upon a finding that the return itself constitutes a valid return for purposes of various provisions of the Internal Revenue Code (e.g., secs. 6501(a), 6651(a)(1), 6654(d)(1)(B)) with respect to which the filing of a valid return gives rise to (or limits) specific rights or actions of either the taxpayer or the Government.
In full, sec. 6665 provides:
SEC. 6665. APPLICABLE RULES.
(a) Additions Treated as Tax. — Except as otherwise provided in this title—
(1) the additions to the tax, additional amounts, and penalties provided by this chapter shall be paid upon notice and demand and shall be assessed, collected, and paid in the same manner as taxes; and
(2) any reference in this title to “tax” imposed by this title shall be deemed also to refer to the additions to the tax, additional amounts, and penalties provided by this chapter.
(b) Procedure for Assessing Certain Additions to Tax. — For purposes of subchapter B of chapter 63 (relating to deficiency procedures for income, estate, gift, and certain excise taxes), subsection (a) shall not apply to any addition to tax under section 6651, 6654, 6655; except that it shall apply—
(1) in the case of an addition described in section 6651, to that portion of such addition which is attributable to a deficiency in tax described in section 6211; or
(2) to an addition described in section 6654 or 6655, if no return is filed for the taxable year.
See sec. 301.6211-1(a), Proced. & Admin. Regs., which provides in pertinent part that “[i]f no return is made * * * for the purpose of the definition “the amount shown as the tax by the taxpayer upon his return” shall be considered as zero.”
We recognize that, in this case, the 1988 return showed a loss. Therefore, based upon that return, petitioner had no obligation to pay estimated taxes, and any issue concerning the Commissioner’s inability immediately to assess a sec. 6654 addition to tax by virtue of sec. 6213(a) would be moot. Nonetheless, not every postnotice return will foreclose a sec. 6654 addition, which addition, in the absence of sec. 6213(a), would immediately be assessable.
We also disregard the 1988 return for purposes of sec. 6654(e)(1), and, because petitioner’s 1988 ultimate tax liability exceeds $500, the exception provided by that paragraph if no return is filed is inapplicable.
Also, because petitioner’s 1987 tax was more than zero (the 1987 Form 1040 showed a tax due of $206 and a notice of deficiency issued for 1987 showed a tax deficiency of $2,331), the exception provided by sec. 6654(e)(2) is inapplicable.
The $27,573 was reported by Merrill Lynch as “gross proceeds from dispositions of securities”. Although the information return from Bank of New York is not in evidence, we assume it does the same with respect to the $2,802. On the 1988 return, petitioner reported both amounts as short-term capital gain; i.e., he failed to report other than a zero basis for either the IBM stоck sold by Merrill Lynch or the security sold by Bank of New York.
Concurrence Opinion
concurring: I concur with the result reached by the majority that petitioner is liable for the addition to tax pursuant to section 6654. I write separately, however, to emphasize that our well-established precedent enunciated in Beard v. Commissioner,
The Internal Revenue Code does not define the term “return”. See sec. 6011; Swanson v. Commissioner,
First, there must be sufficient data to calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury.
Beard v. Commissioner, supra at 777. We apply this test to “returns” for purposes of section 6501,
Furthermore, whether a return constitutes a valid return
The document filed by petitioner contains sufficient data to calculate a tax liability, purports to be a return, and is signed under the penalty of perjury. The issue is whether it is an honest and reasonable attempt to satisfy the requirements of the tax law.
Petitioner’s 1988 tax return was due on or before April 17, 1989. See secs. 6072(a), 7503. In this case, petitioner filed his 1988 “return” on or about May 14, 1997, more than 8 years after the due date. This was more than 2 years after he received the May 3, 1995, notice of deficiency, which certainly put him on notice that his 1988 return had not been filed.
See, e.g., ICI Pension Fund v. Commissioner,
See, e.g., Cabirac v. Commissioner,
See, e.g., Cavanaugh v. Commissioner,
See Williams v. Commissioner,
See, e.g., Sloan v. Commissioner,
See, e.g., Martin Fireproofing Profit Sharing Plan & Trust v. Commissioner,
See Dunham v. Commissioner,
See Turco v. Commissioner,
See, e.g., Galuska v. Commissioner,
See Beard v. Commissioner, supra at 780.
See id. at 773.
See Eckel v. Commissioner,
See, e.g., United States v. Hatton,
Sec. 6103(b)(1) provides:
(1) RETURN. — The term “return” means аny tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, or on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.
The majority makes no finding as to whether petitioner’s 1988 tax return is invalid, or whether it is valid but will nonetheless be disregarded.
See, e.g., Cabirac v. Commissioner, supra at 170; Howard v. Commissioner,
It appears petitioner was put on notice that his 1988 tax return had not been filed as early as June 14, 1990, when he received a letter from his attorney, who was preparing his tax returns, which stated she had not yet filed a return for 1988. See majority op. p. 320.
Concurrence Opinion
concurring: I agree with the reasoning and the result reached by the majority. I write regarding the application of section 6654 only to clarify why the approach used in
We have applied the Beard test in many different contexts.
As explained by the majority, the statutory scheme mandates that a document filed after a notice of deficiency has
See, e.g., Swanson v. Commissioner,
Dissenting Opinion
dissenting: Petitioner’s valid return, which should be the basis for calculating the section 6654 penalty, is disregarded by the majority and “not [considered] * * * to be a ‘return’ for purposes of section 6654(d)(1)(B)(i).” Majority op. pp. 324-325. There is no authority for the majority’s holding, and it is contrary to the unambiguous terms of the statute.
Section 6654 provides for an addition to tax if the taxpayer fails to make the “required annual payment”. Sec. 6654(a) and (b). The “required annual payment” is:
the lesser of—
(i) 90 percent of the tax shown on the return for the taxable year (or, if no return is filed, 90 percent of the tax for such year), or
(ii) 100 percent of the tax shown on the return of the individual for the preceding taxable year.
[Sec. 6654(d)(1)(B)(i) and (ii); emphasis added.]
The majority recognizes that these are “mechanical rules”, yet, presumably acknowledging that the terms of the statute are satisfied, states that “the issue [is] * * * whether petitioner may rely on having satisfied the requirement of section 6654(d)(1)(A) and (B)”. Majority op. p. 323. The statute is unambiguous, and the taxpayer may certainly “rely” on having met its terms. The statute does not refer to a return filed prior to an Internal Revenue Service audit or a return filed prior to the issuance of a notice of deficiency. A valid return will suffice — without regаrd to when it is filed.
We need not, however, adhere to a literal application of a statute if such adherence produces an outcome that is “demonstrably at odds” with clearly expressed congressional intent to the contrary, Griffin v. Oceanic Contractors, Inc.,
The majority states that Schwarzkopf v. Commissioner,
In a further attempt to justify its holding, the majority expresses concern that taxpayers “would be able to negate the addition to tax simply by filing a return for that year that showed a tax liability less than the quarterly estimated payments actually made or, if none had been made, that showed a zero tax liability.” Majority op. p. 325. As Judge Vasquez’s concurring opinion emphasizes, longstanding precedent authorizes us to find that a return is invalid if the taxpayer does not make an honest and reasonable attempt to satisfy the requirements of the tax law. Zellerbach Paper Co.
In Evans Cooperage, the taxpayer contended that the calculation of the estimated tax penalty should be based on its amended return, rather than its timely filed original return. The court held that the phrase “return of the corporation for the preceding taxable year”, in section 6655(d)(1), refers to the timely filed return for that year and not any subsequently filed amended return. Id. at 204. We are not faced, however, with a question of which return should be taken into account because petitioner did not file an amended return. We simply must determine whether to accept or disregard petitioner’s valid return.
The majority acknowledges that petitioner’s case is the “exact opposite of that referred to in Evans Cooрerage”. Majority op. p. 326 (emphasis added). I agree. In Evans Cooperage, the court required the taxpayer to use its original return to calculate the penalty. The majority, on the other hand, states that petitioner “waived his right” relating to the only return he filed and is prohibited from using such return to calculate the penalty. Majority op. p. 326.
If Evans Cooperage is to be cited for anything, it should be cited for the proposition that the Court is obligated to follow the statute. Indeed, in response to one of petitioner’s contentions, the court stated:
It may be inequitable * * * to assess a penalty for underpayment of estimated tax, that is based upon the originally mistaken figure of income for the year, rather than upon the actual income for the year as ultimately determined. However, Congress unambiguously has provided otherwise, and the provision, if indeed inequitable, is for Congress to amend, not thecourts. [Evans Cooperage Co. v. United States, supra at 205; fn. ref. omitted; emphasis added.]
Similarly, we are required to follow statutory mandates and address rather than “disregard”, salient' facts. If there is a perceived problem with the statute, Congress must address the matter.