121 TC 308 - Mendes v. Comm'r

Goeke, J.,

¶1concurring: 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 this case is consistent with our normal practice of applying the return test set forth in Beard v. Commissioner, 82 T.C. 766 (1984), affd. per curiam 793 F.2d 139 (6th Cir. 1986).

¶2We have applied the Beard test in many different contexts.1 We have even relied on Beard in determining whether a return was filed and the taxpayers were liable for the addition to tax under section 6654 where the document purporting to be a return was filed before the notice of deficiency was issued. See, e.g., Turco v. Commissioner, T.C. Memo. 1997-564; Morgan v. Commissioner, T.C. Memo. 1987-184, affd. without published opinion 869 F.2d 1495 (7th Cir. 1989). However, the Beard test has not been applied in some circumstances where the statutory scheme directs a different inquiry. Cabirac v. Commissioner, 120 T.C. 163, 170 (2003) (a return prepared by the Secretary under section 6020(b) treated as a return filed by the taxpayer for purposes of determining the addition to tax under section 6651(a)(2)); Spurlock v. Commissioner, T.C. Memo. 2003-124 (same); Janpol v. Commissioner, 102 T.C. 499, 501-502 (1994) (Beard does not apply in determining period of limitations for purposes of the tax imposed by section 4975 because section 6501(1)(1) specifically references a return that does not require all the information mandated under Beard), supplementing 101 T.C. 518 (1993); see also sec. 6103(b) (definition of return for purposes of confidentiality and disclosure of returns and return information).

¶3As explained by the majority, the statutory scheme mandates that a document filed after a notice of deficiency has been issued is not a return for purposes of section 6654. In future cases where the statutory scheme does not provide the appropriate inquiry to be used to determine whether a return was filed, we should continue to adhere to our well-established practice of applying the Beard test to answer the question.

Wherry and Kroupa, JJ., agree with this concurring opinion.

¶4 See, e.g., Swanson v. Commissioner, 121 T.C. 111, 123-125 (2003) (whether a substitute for return constituted a return within the meaning of 11 U.S.C. sec. 523(a)(1)(B) (2000)); Williams v. Commissioner, 114 T.C. 136, 140 (2000) (accuracy-related penalty under sec. 6662(a)); ICI Pension Fund v. Commissioner, 112 T.C. 83, 88 (1999) (period of limitations under sec. 6501); Galuska v. Commissioner, 98 T.C. 661, 668-669 (1992) (statutory limitations on time for filing claims for credit or refund or limitations on any amount of any credit or refund allowable for purposes of secs. 6011(a), 6511(b), and 6512(b)), affd. 5 F.3d 195 (7th Cir. 1993); Martin Fireproofing v. Commissioner, 92 T.C. 1173, 1192 (1989) (addition to tax for failure to timely file under sec. 6651(a)(1) and filing of information return under sec. 6033); Beard v. Commissioner, 82 T.C. 766, 780 (1984) (applying test for purposes of secs. 6011, 6012, 6072, and 6651(a)(1)), affd. per curiam 793 F.2d 139 (6th Cir. 1986); Rodriguez v. Commissioner, T.C. Memo. 2003-153 (collection case under sec. 6330 where issue was whether returns were filed for purposes of deciding whether respondent’s failure to consider offer in compromise was an abuse of discretion); Dunham v. Commissioner, T.C. Memo. 1998-52 (fraudulent failure to file under sec. 6651(f)); Eckel v. Commissioner, T.C. Memo. 1990-174 (addition to tax for substantial underpayment under former sec. 6661); Hintenberger v. Commissioner, T.C. Memo. 1990-36 (return status under sec. 6013), affd. without published opinion 922 F.2d 848 (11th Cir. 1990); Counts v. Commissioner, T.C. Memo. 1984-561 (addition to tax for negligence under former sec. 6653(a)), affd. 774 F.2d 426 (11th Cir. 1985).

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