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, 82 T.C. 766, 777 (1984), affd. per curiam 793 F.2d 139 (6th Cir. 1986), resolves this issue.
The Internal Revenue Code does not define the term “return”. See sec. 6011; Swanson v. Commissioner, 121 T.C. 111, 122-123 (2003). Based on the Supreme Court’s precedent in Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 180 (1934), and Florsheim Bros. Drygoods Co. v. United States, 280 U.S. 453, 464 (1930), this Court has established a four-part test to determine whether a document submitted by the taxpayer is a valid return. In order to qualify as a return, the document must meet the following requirements:
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 6501,1 section 6651(a)(1),2 section 6653(a),3 section 6662,4 section 6013,5 section 6033,6 section 6651(f),7 section 6511,8 section 6011,9 section 6012,10 section 6072,11 and former section 6661,12 among others. Other Federal courts rely on and apply this test to determine whether a return is valid.13 Situations where we have not applied Beard are when the particular Code section supplies a definition of “return” for purposes of that Code section only, such as in section 6103(b)(1).14
Furthermore, whether a return constitutes a valid return15 for purposes of section 6654 is not a novel issue to the Court. We have applied Beard in more than 35 cases involving section 6654.16
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.
In deciding whether the document filed is an “honest and reasonable attempt to satisfy the requirements of the tax law”, courts have analyzed whether the return filed can still serve a purpose, or have any effect, under the Code. United States v. Hindenlang, 164 F.3d 1029, 1034 (6th Cir. 1999) (document filed post-assessment not a valid return under Beard); United States v. Hatton, 220 F.3d 1057, 1061 (9th Cir. 2000) (“belated acceptance of responsibility * * * does not constitute an honest and reasonable attempt to comply with the requirements of the tax law” when taxpayer filed a document purporting to be a return post-assessment). This inquiry is proper under the third prong of the Beard test.
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.17 Further, petitioner did not file his purported “return” until more than 21 months after he filed his petition with the Court on July 17, 1995. The adjustments in the notice of deficiency were determined without the benefit of petitioner’s “return”. In applying the facts as found by the majority opinion to the test set forth in Beard, it is evident under the facts of this case that petitioner’s filing of the purported “return” was not an honest and reasonable attempt to comply with the tax laws. Petitioner made no estimated tax payments for 1988. There is no record that petitioner filed a return for 1987. Petitioner has not shown that he falls within any of the exceptions to the sec. 6654(a) addition to tax. See sec. 6654(e); Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980). For these aforementioned reasons, respondent’s additions to tax under section 6654(a) should be sustained.
See, e.g., ICI Pension Fund v. Commissioner, 112 T.C. 83, 88-89 (1999); Joseph v. Commissioner, T.C. Memo. 1996-77.
See, e.g., Cabirac v. Commissioner, 120 T.C. 163, 168-170 (2003); Janpol v. Commissioner, 102 T.C. 499, 503, 505 (1994); Beard v. Commissioner, 82 T.C. 766, 780 (1984) affd. per curiam 793 F.2d 139 (6th Cir. 1986); Unroe v. Commissioner, T.C. Memo. 1985-149; Counts v. Commissioner, T.C. Memo. 1984-561, affd. 774 F.2d 426 (11th Cir. 1985).
See, e.g., Cavanaugh v. Commissioner, T.C. Memo. 1991-407, affd. without published opinion 986 F.2d 1426 (10th Cir. 1993); Unroe v. Commissioner, supra; Counts v. Commissioner, supra.
See Williams v. Commissioner, 114 T.C. 136, 140 (2000).
See, e.g., Sloan v. Commissioner, 102 T.C. 137, 147 (1994), affd. 53 F.3d 779 (7th Cir. 1995); Hintenberger v. Commissioner, T.C. Memo. 1990-36, affd. without published opinion 922 F.2d 848 (11th Cir. 1990); Britt v. Commissioner, T.C. Memo. 1988-419.
See, e.g., Martin Fireproofing Profit Sharing Plan & Trust v. Commissioner, 92 T.C. 1173, 1193 (1989).
See Dunham v. Commissioner, T.C. Memo. 1998-52.
See Turco v. Commissioner, T.C. Memo. 1997-564.
See, e.g., Galuska v. Commissioner, 98 T.C. 661, 668-669 (1992), affd. 5 F.3d 195 (7th Cir. 1993); Beard v. Commissioner, supra at 780.
See Beard v. Commissioner, supra at 780.
See id. at 773.
See Eckel v. Commissioner, T.C. Memo. 1990-174.
See, e.g., United States v. Hatton, 220 F.3d 1057, 1060 (9th Cir. 2000); United States v. Hindenlang, 164 F.3d 1029, 1033 (6th Cir. 1999).
Sec. 6103(b)(1) provides:
(1) RETURN. — The term “return” means any 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, T.C. Memo. 2000-222; Sochia v. Commissioner, T.C. Memo. 1998-294; Turco v. Commissioner, supra; Swaim v. Commissioner, T.C. Memo. 1996-545; Sochia v. Commissioner, T.C. Memo. 1995-475, affd. without published opinion 116 F.3d 478 (5th Cir. 1997); Sickler v. Commissioner, T.C. Memo. 1994-462; Cavanaugh v. Commissioner, supra.
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.