dissenting:
The majority overrules Goldberg v. Commissioner, 14 B.T.A. 465 (1928), which has been outstanding for 60 years, and now holds that a so-called “substitute return” made by the Secretary of the Treasury or his delegate pursuant to section 6020(b) and declared by Congress to be “prima facie good and sufficient for all legal purposes” is not a return for purposes of section 6013(b), with the result that the limitations on a taxpayer’s election to make a joint return for the same taxable year, set forth in section 6013(b)(2), are not applicable.
Neither petitioner nor his spouse made a timely Federal income tax return for calendar years 1979, 1980, 1981, or 1982, as required by law. Secs. 6011, 6012(a)(1)(A), 6072(a), 6081(a). Accordingly, in April 1984, after conducting an audit of petitioner’s income tax liability, respondent exercised his authority under section 6020(b) to make substitute returns on petitioner’s behalf for those years. These substitute returns, designating petitioner’s filing status as “Single,” were “separate returns” in the sense that no election to make a joint return under section 6013(a) was made for petitioner and his spouse. Approximately 9Vz months later, respondent issued petitioner a notice of deficiency based upon the tax liability shown on the substitute returns. After commencing this proceeding, petitioner and his spouse filed delinquent returns in January 1986, claiming joint filing status in derogation of the limitation contained in section 6013(b)(2)(C).
In analyzing petitioner’s claim, it is helpful to note that the Internal Revenue Code generally provides the tax collector with three alternative responses to a taxpayer’s failure to file an income tax return. First, he may seek criminal sanctions pursuant to section 7203 against any taxpayer whose failure to file is willful. E.g., United States v. Verkuilen, 690 F.2d 648 (7th Cir. 1982) (affirming taxpayer’s conviction for failure to file individual income tax returns for 1976 and 1977 after respondent made a return on the taxpayer’s behalf for 1975 under section 6020(b)).
Second, the Secretary of the Treasury may issue a statutory notice of deficiency, even though no return is made by the taxpayer, and compute the amount of the deficiency as if a return were made showing the amount of tax to be zero. Sec. 301.6211-1(a), Proced. & Admin. Regs.; Laing v. United States, 423 U.S. 161, 174 (1976); Roat v. Commissioner, 847 F.2d 1379 (9th Cir. 1988); Hartman v. Commissioner, 65 T.C. 542, 545 (1975). The issuance of a notice of deficiency by itself, however, does not preclude a taxpayer from subsequently filing a delinquent return and electing to make a joint return under section 6013. Phillips v. Commissioner, 86 T.C. 433 (1986), affd. in part, revd. in part 851 F.2d 1492 (D.C. Cir. 1988). We held in Phillips that so long as a taxpayer and his spouse have not previously filed a separate return, the limitations on that taxpayer’s election to make a joint return, set out in section 6013(b)(2), are not applicable. See Tucker v. United States, 8 Cl. Ct. 575 (1985).
Third, the Secretary may do what he did in this case and what he attempted to do in Phillips: make a substitute return pursuant to section 6020(b) on behalf of the taxpayer and issue a statutory notice of deficiency for the income tax shown on such substitute return. While the Secretary is given “authority” to make such return, he is clearly not required to do so. Roat v. Commissioner, supra; Moore v. Commissioner, 722 F.2d 193, 196 (5th Cir. 1984); Hartman, v. Commissioner, supra at 545. In this case, unlike Phillips, the majority found that the Secretary made substitute returns on behalf of petitioner.1 If the Secretary makes a return on behalf of the taxpayer, section 6020(b)(2) states that any such return “shall be prima facie good and sufficient for all legal purposes.”
It is clear that if the petitioner had made the separate returns which respondent made on his behalf, section 6013(b)(2)(C) would foreclose him from contesting his failure to elect joint filing status in a proceeding before this Court. The limitation in section 6013(b)(2)(C) becomes operative once a separate return is filed. This limitation precludes a taxpayer from thereafter electing to make a joint return with his spouse for that year once a notice of deficiency is issued to either one of them and a petition is filed in this Court. The issue here is whether such limitation becomes operative following a substitute separate return made by respondent under section 6020(b).
Section 6020(b)(2) declares that a substitute return is presumed to be, in effect, the functional equivalent of a return filed by an individual taxpayer.2 While a taxpayer may present facts and circumstances which raise the question whether the presumption created by section 6020(b)(2) should be overturned, the majority makes no finding that any such facts are present in this case.3 Accordingly, I would hold that the limitation of section 6013(b)(2)(C) applies to petitioner and prohibits his election of joint return status after having been deemed by law to have filed a separate return. To hold otherwise reads section 6020(b)(2) out of the Code.
As I read its opinion, the majority believes that respondent should not be permitted, by filing a substitute separate return, to foreclose petitioner from electing to file a joint return. The majority recognizes that literal application of section 6020(b)(2) requires that result, but believes it to be an “anomalous” and “unintended” result in terms of the deficiency procedures set out in sections 6211 through 6215, as interpreted by our opinion in Taylor v. Commissioner, 36 B.T.A. 427 (1937).
Unlike the majority, I do not believe it is anomalous to hold, as we did in Goldberg v. Commissioner, supra, that a substitute return filed on behalf of a delinquent taxpayer under section 6020(b) triggers the limitation contained in section 6013(b)(2)(C) and, at the same time, to hold, as we did in Taylor v. Commissioner, supra, that the taxpayer is nevertheless able to petition this Court for redetermination of other aspects of the respondent’s deficiency computation arising from the substitute return. The result is identical for a taxpayer who failed to file a return and for a taxpayer who filed a separate return: both can petition this Court to redetermine other elements of a deficiency, but both are foreclosed by section 6013(b)(2)(C) from electing joint return status. In my view, the majority creates the anomaly by affording nonfiling taxpayers an opportunity to elect joint return status while the statute expressly makes such election unavailable to taxpayers who file their returns.
Unlike the majority, I do not believe that the issue in this case presents a conflict between section 6020(b) and the deficiency procedures embodied in sections 6211 through 6215. Under the Goldberg rule, a delinquent taxpayer for whom respondent makes a substitute return would be bound by separate filing status if selected by respondent. A delinquent taxpayer, such as petitioner, had the opportunity to elect joint filing status for himself, but failed to do so. In my view, it is not “anomalous” for the statute to provide, as I believe it does through the application of section 6020(b), that a delinquent taxpayer is bound by the selection made by respondent on a substitute return. I see nothing in the deficiency procedures to suggest that a delinquent taxpayer should not be bound thereby, just as if he had filed the substitute return himself, or just as in the case of a taxpayer who files a timely return.
Nor do I agree that Congress recognized that the literal application of section 6020(b) would bring about “anomalous results” in this case. Indeed, when Congress enacted the Revenue Act of 1924, which created the deficiency procedures, it also reenacted the predecessor of section 6020, which provided that a return made by the Secretary on behalf of a delinquent taxpayer is “prima facie good and sufficient for all legal purposes.” Sec. 1003, Act of June 2, 1924, ch. 234, 43 Stat. 339. In fact, Congress has also amended or reenacted section 6020(b) and its predecessors six times during the 60 years since our decision in Goldberg, and, in effect, has tacitly approved that decision.4
Congress also demonstrated its approval of the principle underlying the Goldberg decision by adding section 6501(b)(3) to the Code in 1954. Sec. 6501(b)(3), I.R.C. 1954, 68A Stat. 803. That provision expressly applies “notwithstanding the provisions of paragraph (2) of section 6020(b),” and stops the running of the period of limitations on assessment and collection in the case of substitute returns executed by the Secretary. The congressional committee reports describe the effect of section 6501(b)(3) as follows:
This subsection * * * changes existing law in that the execution of a return by the Internal Revenue Service will not constitute the making of a return for the purpose of starting the running of the statute of limitations on assessment. [S. Rept. 1622, 83d Cong., 2d Sess. 584 (1954); H. Rept. 1337, 83d Cong., 2d Sess. A413 (1954). Emphasis supplied.]
Such change would have been unnecessary unless Congress viewed a substitute return as the equivalent of a return filed by the taxpayer.
Shortly after Congress promulgated the deficiency procedures in 1924, our predecessor, the Board of Tax Appeals, was called upon to determine the meaning of the term “deficiency” for purposes of deciding whether the Board had jurisdiction over the matter at issue or whether, as respondent contended, there was no deficiency because he had merely assessed the amount shown on the return filed by the taxpayer. See, e.g., Moir v. Commissioner, 3 B.T.A. 21 (1925); Continental Accounting & Audit Co. v. Commissioner, 2 B.T.A. 761 (1925). We noted that, ordinarily, the term “deficiency” is the amount of tax determined to be due by respondent in excess of that shown on the taxpayer’s return, but held that such term also includes so much of the tax liability shown on the taxpayer’s return which the taxpayer does not acknowledge to be due and collectible. Moir v. Commissioner, supra; Continental Accounting & Audit Co. v. Commissioner, supra.
We subsequently applied the same rationale to a substitute return filed by respondent. Taylor v. Commissioner, 36 B.T.A. 427 (1937). In Taylor, we correctly held that there was a “deficiency” in the amount of the tax liability shown on a substitute return, just as in the case of a return filed by the taxpayer himself, because the taxpayer had not acknowledged such tax liability to be due and owning. We rejected the Commissioner’s contention that a substitute return foreclosed our deficiency jurisdiction and in legal effect was something more than a taxpayer’s own return. We did not, however, suggest that a substitute return was anything less them the taxpayer’s own return. In Taylor, we merely granted a substitute return made by the Secretary or his delegate under section 6020(b) the same legal status as a return made by the taxpayer, himself.
Taylor involved a substitute return, but did not involve an election to file a joint return under section 6013, as did Goldberg. Nevertheless, the two opinions are entirely consistent and give a substitute return the same status as a return filed by the taxpayer himself. We stated the following in Goldberg:
In R. Downes, Jr., supra, we denied to the petitioner, who had filed a return on a joint basis, the right to change to a separate basis. The foundation of this decision is that under section 223, Revenue Act of 1921, a husband and wife may either file separate returns or a joint return and that whichever method is pursued, the return or returns filed become the return or returns recognized and required by the statute. The decision further holds that taxpayers are not permitted or required to file more than one return for a taxable year. It followed, therefore, that since the return contemplated by the statute was filed when the joint return was filed, the Board could not recognize new returns on a separate basis as the returns required by statute.
Now, is the situation different where no return was filed by the husband or wife, but a return was filed on their behalf by the Commissioner? In other words, does the return filed by the Commissioner become the return of the husband and wife, and stand on the same basis as a return filed by the parties themselves? We think so. Not only does section 3176 provide that upon the failure of a taxpayer to make a return, the return may be made by the Commissioner from his own knowledge and from such information as he can obtain, but also that any return so made “shall be prima facie good and sufficient for all legal purposes.” In the opinion of the Board, this provision can only mean that Congress intended that a return so filed should answer the same purposes as if filed by the parties themselves. * * * [TJhese returns filed by the Commissioner have the same status as returns filed by the parties themselves * * *
[14 B.T.A. at 466-467. Emphasis in original.]
We stated the same rationale for our decision in Taylor:
In the ordinary case where a return is filed by the taxpayer, the amount of tax shown thereon is admitted to be due, and in such case a deficiency is the amount of tax determined by respondent to be due in excess of that shown on the taxpayer’s return. But where a taxpayer shows an amount of tax on his return but does not admit that such amount is due and collectible, the amount admitted to be due and not the amount shown on the return is the starting point in computing a deficiency. [36 B.T.A. at 429.]
The majority, on the other hand, summarizes our holding in Taylor to be that “we possess jurisdiction to the extent that a taxpayer disagreed with the return as filed by respondent in a deficiency setting.” In my view, the majority thus misstates our holding in Taylor by disregarding the principle that a substitute return is the equivalent of a return filed by the taxpayer, himself. We have consistently held in Taylor, and in Goldberg, and in a number of cases dealing with other issues, that in a deficiency proceeding, a taxpayer for whom respondent has filed a substitute return is in no different position than a taxpayer who himself filed the return at issue. Second Carey Trust v. Commissioner, 2 T.C. 629, 633 (1943); Lee H. Marshall Heirs v. Commissioner, 45 B.T.A. 632, 637 (1941); Harden v. Commissioner, 44 B.T.A. 961, 966 (1941), affd. 125 F.2d 906 (4th Cir. 1942); Blenheim Co., Ltd. v. Commissioner, 42 B.T.A. 1248, 1251 (1940); Taylor Securities, Inc. v. Commissioner, 40 B.T.A. 696 (1939); Briarly v. Commissioner, 29 B.T.A. 256 (1933).
If a substitute return is given the same status as a return filed by the taxpayer, as required by section 6020(b), then it is clear that the choice of filing status made on a substitute return should be treated no differently than the choice of filing status made on a return filed by the taxpayer. In both situations, the limitation contained in section 6013(b)(2)(C) applies and prohibits the taxpayer from electing joint return status in a proceeding before this Court brought pursuant to a notice of deficiency based upon the original return. For the foregoing reasons, I believe that Goldberg and the decisions of this Court which follow it, Beran v. Commissioner, T.C. Memo. 1980-119, and Conovitz v. Commissioner, T.C. Memo. 1980-22, and the opinion of the 10th Circuit in Smalldridge v. Commissioner, 804 F.2d 125 (10th Cir. 1986), affg. T.C. Memo. 1984-434, are correct and should be followed. See also Fazz v. United States, an unreported case (D. Ariz. 1985, 57 AFTR 2d 86-388, 85-2 USTC par. 9790).
Parker, Hamblen, Jacobs, Williams, and Wells, JJ., agree with this dissent.It appears that each of the returns made by respondent consists of: (1) An unsigned single-page Form 1040 containing petitioner’s name, address, social security number, and filing status, and no other information; and (2) an attached report prepared by respondent’s revenue agent setting forth an explanation of income items, an allowance of a personal exemption, and a standard deduction. Only the revenue agent’s report, however, was subscribed, and it appears that such signature is “not readily cognizable.” Assuming that the signature in question is that of respondent’s revenue agent, he would seem to have been delegated authority to execute a substitute return pursuant to sec. 6020(b). Delegation Order No. 182 (Rev. 3), 1984-1 C.B. 328.
While I accept the majority’s conclusion that the subject documents constitute “substitute returns” for purposes of this dissent, I question whether the majority has fully considered the requirement of sec. 6020(b)(2) that such a return be subscribed by the Secretary or his delegate. In this case, the return itself was not subscribed, but a signature does appear on a document attached to such return. We have consistently held that an unsigned form submitted by a taxpayer is not a return, even though the taxpayer’s signature appears on a document attached thereto. Richardson v. Commissioner, 72 T.C. 818, 822 (1979); Vaira v. Commissioner, 52 T.C. 986, 1005 (1969), revd. on other grounds 444 F.2d 770 (3d Cir. 1971). See also Brafman v. United States, 384 F.2d 863, 868 (5th Cir. 1967). I see no reason why the same should not be true here. See Rinieri v. Scanlon, 254 F. Supp. 469, 474 (S.D. N.Y. 1966). In that situation, our decision in Phillips controls.
It begs the question to say, as the majority opinion does, that sec. 6020(b), a provision of general remedial application, cannot apply in the context of sec. 6013(b) because the latter provision makes reference to returns filed by an “individual.”
For example, the presumption in favor of a substitute return might be called into question upon a showing that the taxpayer actually filed a return of which the Commissioner has no record. Similarly, a showing of facts sufficient to avoid the addition to tax under sec. 6651(a)(1) for failure to file a timely return might also be sufficient to overcome the “prima facie” legal effect of a substitute return under sec. 6020(b)(2). It appears the majority is concerned by the application of sec. 6020(b) in situations where a taxpayer’s failure to file is “unintentional and/or justifiable.” No such facts were involved in Goldberg v. Commissioner, 14 B.T.A. 465 (1928), or the cases cited below which follow Goldberg. I might agree that a substitute return should not be binding in that case. However, no such facts were found by the majority in this case and that issue is simply not presented here.
See sec. 412(b)(4), Deficit Reduction Act of 1986, Pub. L. 98-369, 98 Stat. 792; sec. 1906(b)(13)(A), Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1834; sec. 103(e)(3), Revenue and Expenditures Control Act of 1968, Pub. L. 90-364, 82 Stat. 264; sec. 6020, I.R.C. 1954, 68A Stat. 740; sec. 3612, I.R.C. 1939, 53 Stat. 437; sec. 406 Act of August 30, 1935, ch. 829, 44 Stat. 112.