dissenting: I respectfully dissent from the majority’s opinion. Neither the statute, its history, nor the principle of stare decisis requires the conclusion here reached today.
I. The Arguments of the Parties
Petitioner contends that section 6661 cannot properly be interpreted as imposing a penalty where a delinquent, but accurate, return is filed. That conclusion turns on the meaning of the term “understatement,” as that term is defined in section 6661(b)(2)(A). There, the term is defined as follows:
the term “understatement” means the excess of—
(i) the amount of the tax required to be shown on the return for the taxable year, over
(ii) the amount of tax imposed which is shown on the return, reduced by any rebate (within the meaning of section 6211(b)(2)).
[Sec. 6661(b)(2)(A).]
It cannot be denied that the definition does not, in so many words, address the calculation of an understatement where no return, a late return, or an amended return is filed. Simply, it directs that, to calculate an understatement, the amount of tax shown on the return is subtracted from the amount of tax required to be shown on the return. As simply, the difference between the parties here concerns how the phrase “amount of tax imposed which is shown on the return” is to be interpreted when no return is filed (or, as here, no return is deemed to have been filed).
Respondent contends that a permitted interpretation of the statute can be found in section 1.6661-2(d)(2), Income Tax Regs., which details, among other things, how the tax shown on the return is to be determined when no return is filed or where an amended return is filed. In pertinent part, the regulation provides:
Tax shown on return. For purposes of section 6661, the amount of tax shown on the return for the taxable year is determined * * * without regard to any amount of additional tax shown on a return (including an amended return, so-called) filed after the taxpayer is first contacted by the Internal Revenue Service concerning the tax liability of the taxpayer for the taxable year. * * * If no return was filed for the taxable year * * * the amount of tax shown on the return is considered to be zero. * * * [Sec. 1.6661-2(d)(2), Income Tax Regs.]
The majority agree with respondent’s contention that the regulation contains a proper interpretation of the statute.
II. The Majority’s Analysis
According to the majority, the statute “obviously [is] unclear and lacking in guidance as to how the section * * * is to apply to ‘no-return,’ to ‘amended return,’ and to ‘late-return’ situations.” Majority op. p. 100. Nevertheless, the majority do not directly address the validity of that interpretation or examine the legislative history of section 6661 in search of authority to support that interpretation. The majority rely principally on our prior opinion in Estate of McClanahan v. Commissioner, 95 T.C. 98 (1990), which dealt with a similar fact pattern. Such rebanee is unjustified. Although in Estate of McClanahan we stated that a reading of the legislative history convinced us that imposition of section 6661 additions to tax was not beyond the scope of the statute, we did not expressly address the vahdity of the regulation here in dispute. Rather, we concluded that any tax shown on delinquent but original returns was “additional tax” within the meaning of section 1.6661-2(d)(2), Income Tax Regs. The gist of our analysis is contained in the following language:
Prior to being contacted by the special agent, petitioners had not filed tax returns for the years [in issue]. Consequently, prior to contact, the amount of tax shown on the returns is zero. Sec. 1.6661-2(d)(2), Income Tax Regs. The amount of tax shown on the returns filed subsequent to contact by the Internal Revenue Service is therefore “additional” to the zero amount prior to contact and is plainly within the intendment of section 1.6661-2(d)(2), Income Tax Regs. * * * [Estate of McClanahan v. Commissioner, 95 T.C. at 104.[1]
Contrary to the contention of the majority, our holding in Estate of McClanahan therefore deals not so much with the validity of the regulation as with a construction of the regulatory language itself. Furthermore, as admitted by the majority, the only other reference this Court has made to the validity of section 1.6661-(2)(d)(2), Income Tax Regs., is in a footnote in Woods v. Commissioner, 91 T.C. 88 (1988). After a search of the case law, I have found no other case dealing with validity of the regulation. In all other decisions of this Court cited by the majority, supra, majority op. p. 97, the issue was either not raised or not addressed. The unpublished Fifth Circuit opinion cited by the majority, Mosher v. Commissioner, 927 F.2d 599 (5th Cir. 1991), does not address the validity of the regulation but merely cites to the regulation. I thus see our opinion in Estate of McClanahan, and our comment in a footnote in Woods, as no bar to a thorough examination of the validity of the regulation. For the reasons stated below, I am persuaded that such an examination demands a decision in favor of petitioner. I believe that the regulation is invalid in its application to the “no-return” and “late-return” situations.
III. Validity of the Disputed Portion of the Regulation
a. Guidelines for Interpretation
We are here concerned with a tax statute that imposes a penalty.2 “The law is settled,” the Supreme Court has stated, “that ‘penal statutes are to be construed strictly,’ * * * and that one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it,’.” Commissioner v. Acker, 361 U.S. 87, 91 (1959) (citations omitted). Moreover, while it is true that Treasury regulations enjoy a presumption of validity, Acker v. Commissioner, 258 F.2d 568, 573 (6th Cir. 1958), affd. 361 U.S. 87 (1959), they will not be sustained if “unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 (1948). With those guidelines in mind, we should proceed to examine the words of the statute (section 6661(b)(2)(A)) to determine whether they support the determination of an understatement when the only return made fully reports the amount of tax required to be shown on that return. I believe that they do not. In relevant part, the statute simply directs that, to determine an understatement, the amount of tax shown on the return is subtracted from the amount of tax required to be shown on the return. The statute does not contain the gloss that the Secretary, by regulation, would attribute to it. That is not to say, however, that the Secretary’s attribution necessarily is illegitimate. The general principle was well put by Justice Frankfurter in Commissioner v. Acker, 361 U.S. at 94 (Frankfurter, J., dissenting (but this point does not seem to have been in controversy)): “Congress can be the glossator of the words it legislatively uses either by writing its desired meaning, however odd, into the text of its enactment, or by a contemporaneously authoritative explanation accompanying a statute.”
b. Commissioner v. Acker
It is apt to make reference to Acker given the question here at issue. In Acker, the Court was concerned with the question whether, under the Internal Revenue Code of 1939, the failure of a taxpayer to file a declaration of estimated income tax not only subjected him to the addition to the tax prescribed for failure to file the declaration but also to the further addition to the tax prescribed for the filing of a “substantial underestimate” of his tax. The Court held invalid a regulation that, for the purpose of determining if a substantial underestimate existed, deemed a failure to file a declaration of estimated tax to be the equivalent of a filed declaration estimating zero tax. Commissioner v. Acker, 361 U.S. at 93-94. Justice Frankfurter (dissenting) did not doubt that, to find failure to file a declaration of estimated income to be a “substantial underestimate,” would be to attribute to Congress a most unlikely meaning for that phrase “simpliciter. ” Nevertheless, he found persuasive evidence in the legislative history of the provision that Congress did not mean the language in controversy, “however plain it may be to the ordinary user of English,” to have the ordinary meaning. Both the Senate report and the House report, he concluded, added a gloss to the phrase “substantial underestimate,” which legitimated the position taken in the regulations. Id. at 94-95.
c. Legislative History
No similar gloss can be found in the legislative history of section 6661. In Acker, Justice Frankfurter pointed out that “the most authoritative form of contemporaneous explanation by Congress of a gloss that it would add to the plain language of legislation is a Congressional report defining the scope and meaning of that legislation.” “The most authoritative report,” he stated, “is a Conference Report acted upon by both Houses and therefore unequivocally representing the will of both Houses as the joint legislative body.” Id. at 94. Section 323(a) of Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 324, 613 (enacting section 6661) originated as a Senate amendment to a House revenue bill (H.R. 4961). See S. Rept. 97-494, at 272-273 (1982). The conference agreement generally follows that amendment, with changes not here relevant. See H. Rept. 97-760 (Conf.) (1982), 1982-2 C.B. 649-651. The report of the Committee on Finance states the reasons for the amendment as follows:
Reasons for Change
The committee believes that an increasing part of the compliance gap is attributable to the “audit lottery.” The audit lottery is played by taxpayers who take questionable (although non-negligent) positions not amounting to fraud or negligence on their returns in the hopes that they will not be audited. If a taxpayer is audited and the questionable position is challenged, then he or she pays the additional tax owing plus interest. Importantly, however, taxpayers are not exposed to any downside risk in taking highly questionable positions on their tax returns since even resolution of the issue against the taxpayer will require only payment of the tax that should have been paid in the first instance with interest to reflect the cost of the “borrowing.” Taxpayers rely on opinions of tax advisors to avoid the possibility of fraud or negligence penalties in taking these highly questionable positions, even though the advisor’s opinion may clearly indicate that if the issue is challenged by the Internal Revenue Service, the taxpayer will probably lose the contest. Thus, in the event that the questionable position is not detected, the taxpayer will have achieved an absolute reduction in tax without cost or risk. The committee believes, therefore, that taxpayers should be subject to a penalty designed to deter the use of undisclosed questionable reporting positions. On the other hand, the committee recognizes that taxpayers and the Government may reasonably differ over the sometimes complex Federal tax laws, and that a penalty is not appropriate for in [sic] many cases in which there is a large underpayment. Finally, the committee believes that taxpayers investing in substantial tax shelters should be held to a higher standard of reporting or risk a significant penalty. [S. Rept. 97-494 at 272-273.]
In relevant part, operation of the amendment is explained as follows:
Explanation of Provision
In general, under the committee bill, when there is a substantial understatement in income tax for any taxable year attributable to an aggressive filing position not disclosed by the taxpayer in the return, * * * an addition to tax equal to * * * [25] percent of such understatement will be imposed.
For this purpose, an understatement is the excess of the amount of income tax imposed on the taxpayer for the taxable year, over the amount of tax shown on the return. * * *
[S. Rept. 97-494 at 273.]
Neither the conference report nor the report of the Committee on Finance gloss the statute in a way that would allow respondent to disregard an original return, showing all of the tax required to be shown, to determine an understatement. As is clear from the Committee on Finance report, the substantial understatement addition was directed at taxpayers taking questionable positions that, if detected, likely would subject them to no more than the proper tax charge plus interest. The “audit lottery” described in the Committee on Finance report is the chance that, given the notoriously low rate of audit coverage by respondent, a return filed by a taxpayer will not be examined. It is not the chance that, if no return is made, the taxpayer will not be caught, for, if it were, the report would not state that taxpayers are exposed to no downside risk (beyond tax and interest) in taking highly questionable positions on their returns. Failure to file without reasonable cause attracts its own addition to tax (described below), which imposes a significant downside risk if that gambit is tried.3 Because there was no risk (beyond tax and interest) in failing to disclose a questionable position in a return, therefore the committee thought a deterrent was necessary. Thus, in explaining when the substantial understatement addition would be imposed, the committee spoke of “an aggressive filing position not disclosed by the taxpayer in the return [emphasis added],” and, in describing an understatement, “the amount of tax shown on the return [emphasis added].” S. Rept. 97-494, at 273. The language of the committee report simply is inconsistent with the notion that Congress intended the substantial understatement addition to apply if the only return ever made fully shows the amount of tax required to be shown. Thus, the report does not add the gloss found in the regulation and upheld by the majority.
d. Two Additions for Same Failure
In fact, the absence of such a gloss is not illogical. When we impose an addition to tax under section 6661 based on petitioner’s failure to file a return (or his delinquent filing of that return), we are imposing an addition for the same failure for which Congress specifically has provided a separate and very substantial addition. See sec. 6651(a)(1).4 Nothing in the legislative history of section 6661 persuades me that Congress intended such a duplication. See Commissioner v. Acker, 361 U.S. at 93 (“Bearing in mind that we are here concerned with an attempt to justify the imposition of a second penalty for the same omission for which Congress has specifically provided a separate and very substantial penalty, we cannot say that the legislative history of the initial enactment is so persuasive as to overcome the language of [the statute] which seems clearly to contemplate the filing of an estimate before there can be an underestimate.”). Although respondent did not here determine additions under both sections 6651 and 6661, he has done so on numerous occasions.5
e. Explanation for Respondent’s Interpretation
Finally, with regard to the legislative history of section 6661, a possible explanation for respondent’s reading of the term understatement can be found in a discarded predecessor to section 323(a) of TEFRA (which enacted section 6661). In the second session of the 97th Congress, during the months prior to enactment of TEFRA, the tax writing committees of the Congress considered two bills dealing with tax compliance: the “Taxpayer Compliance Improvement Act of 1982” (S. 2198; H.R. 5829) and the “Tax Compliance Act of 1982” (H.R. 6300). See Taxpayer Compliance Improvement Act of 1982, Hearing Before the Senate Committee on Finance, 97th Cong., 2d Sess. 47-48, 74-75, 141-142, 267-270, 366-367, 371-373 (March 22, 1982); Tax Compliance Act of 1982, Hearing Before the Committee on Ways and Means, 97th Cong., 2d Sess. 39, 78-80, 167, 267-268 (May 18, 1982). Each contained an addition applicable to understatements. In the former bill, the addition was based on an excess “underpayment,” with the meaning of that term being generally the same as in section 6653(c). Section 6653 dealt with negligence and fraud and contained a definition of the term underpayment that clearly considered as an underpayment all payments accompanying late filed returns. See sec. 301.6653-l(c)(l)(i), Proced. & Admin. Regs. If enacted, the understatement provision in the Taxpayer Compliance Improvement Act of 1982 would have penalized petitioner in the situation here at issue. That provision, however, was not enacted, Congress enacting instead a provision keyed to the amount of an “understatement,” with no direction to find the meaning of that term outside of section 6661. (See discussion in Woods v. Commissioner, 91 T.C. at 98 n.19.)
f. Extent to Which Regulation Should Be Held Invalid
For the reasons stated, I would hold section 1.6661-2(d)(2), Income Tax Regs., invalid to the extent that it authorizes respondent to disregard petitioner’s original returns and to treat petitioner as if he had made returns showing zero tax due. Such a holding necessarily would also invalidate section 1.6661-2(d)(2) to the extent it prescribes, if no return is filed for the taxable year, that the amount of tax shown on the return is considered to be zero. To the extent that Estate of McClanahan v. Commissioner, supra, and Woods v. Commissioner, supra, hold otherwise, they should be overruled.
g. Subsequent Legislative History
Before concluding this portion of the dissent, I note (as do the majority) that the issue here presented cannot arise for returns first due after 1989, since, in the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, 103 Stat. 2106. Congress repealed section 6661 with respect to such returns. Congress substituted an understatement addition that applies only if a return has been made. Pub. L. 101-239, sec. 7721, 103 Stat. 2106, 2395. See secs. 6662(a), 6662(b)(2), and 6664(b). In making that substitution, Congress implicitly acknowledged that courts had struggled with the prior rule. See H. Rept. 101-247, 1393-1394 (1989); H. Rept. 101-386, (Conf.) 651-655 (1989) (“This is intended to improve the coordination between the accuracy-related penalties and the failure to file penalties. Under present law, the courts have dealt with a number of difficult interpretative issues on the relationship between the penalty for failure to file a tax return and the accuracy-related penalties.”) Contrary to what the majority may imply, Congress did not thus indicate that courts have dealt with those issues correctly, only that they have dealt with them. The issue here under consideration remains an important one because of cases yet to be decided that will be governed by sections 6661 and 6651.
IV. Application of the Doctrine of Stare Decisis
I have concluded that the question here presented should be considered as a new matter. Because the majority emphasize that this is an appropriate occasion to apply the principle of stare decisis, however, I feel compelled to comment on the application of that principle. Stare decisis embodies the time-honored philosophy fiat prout consuevit (nil temere novandum) (let it be done as it hath used to be done (nothing must be rashly innovated)). See Black’s Law Dictionary 623 (6th ed. 1990). In determining whether the importance of giving effect to stare decisis outweighs the importance of correcting an error in reasoning, construction, or application of the law, however, we must also remember that our system of justice embodies a countervailing philosophy — fiat justitia, ruat coelum (let right be done, though the heavens fall). Ellison v. Georgia Railroad & Banking Co., 87 Ga. 691, 696, 13 S.E. 809 (1891). Moreover, we are dealing here with a question of statutory interpretation, where it is the will of the legislature that a court must discover and effectuate. As the U.S. Supreme Court has stated: “We are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this Court’s own conception of it.” Helvering v. Hallock, 309 U.S. 106, 122 (1940); accord Payne v. Tennessee, 501 U.S. _ (1991) (slip op. at 33-36), and cases cited therein. In Macabe Co. v. Commissioner, 42 T.C. 1105 (1964), we overruled Rouse v. Commissioner, 39 T.C. 70 (1962), to the extent that it held, under the Internal Revenue Code provisions dealing with depreciation, that salvage value could be equated with the amount received upon the sale of a depreciable asset. We took that action despite the fact that the Second Circuit Court of Appeals had affirmed Rouse on that issue just 2 months earlier.
The majority cite Vasquez v. Hillary, 474 U.S. 254 (1986), which in turn quotes in part Justice Brandéis’ preeminent discussion of stare decisis in his dissent in Burnet v. Coronado Oil & Gas Co., in support of their application of stare decisis (majority op. p. 99). That quotation is not complete, however. In his dissent, Justice Brandéis stated as follows:
Stare decisis is usually the wise policy * * * But * * * [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. [Burnet v. Coronado Oil & Gas Co., 285 U.S. at 406-408. Emphasis added, fn. ref. omitted.]
In addition, the majority’s citation to Payne v. Tennessee, supra, seems inappropriate, since there the Supreme Court refused to apply stare decisis, and overturned two prior decisions.
I am convinced that we should in this case correct the error and overrule a decision that does not rest on sound policy or reasoning. The precedent I would here overturn (Estate of McClanahan) is barely 1 year old, and it has not been relied upon by any other court. It cannot be said that age or rebanee has achieved for it a presumption of correctness. Compare Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 268 (1987) (Stevens, J., concurring and dissenting) (in dissent arguing that, by a consistent course of decisions over time, a statute can acquire “a meaning that should be as clear as if the judicial gloss had been drafted by Congress itself.”) Moreover, we should not lose sight of the fact that here we are dealing with a penalty provision and not a rule of civil law that was rebed upon by the parties in entering into a contract or a sale of land. As the Supreme Court stated in Payne v. Tennessee, “Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved.” Payne v. Tennessee, supra, slip op. at 34. (Indeed, the decision that the majority here rely upon (Estate of McClanahan) was not even decided until 22 months after the addition to tax here in question was asserted. Reliance by the parties on that decision simply is not an issue here.) Since the section 6661 addition to tax is punitive in nature, it ought not to be applied except where clearly intended by Congress. What the Supreme Court said in a different context (mail fraud) is applicable here. “There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute.” McNally v. United States, 483 U.S. 350, 360 (1987) (quoting Fasulo v. United States, 272 U.S. 620, 629 (1926)). For all those reasons, we should not here feel ourselves bound by stare decisis to reach a conclusion not authorized by the statute.
CHABOT and BEGHE, JJ., agree with this dissent.1 have no quarrel with our conclusion in Estate of McClanahan to the extent that it would require the conclusion here that sec. 1.6661-2(d)(2), Income Tax Regs., indeed requires respondent to disregard petitioner’s returns and to treat him as if he had filed returns showing zero tax due. Although the regulation does not explicitly so provide (stating only that any “additional” tax shown on a return filed after a taxpayer is first contacted by the Internal Revenue Service is to be disregarded), no other reading of the regulation makes sense. Unless petitioner is deemed previously (and prior to having been contacted by respondent) to have filed a return showing a zero tax, the regulation would provide no authority to disregard any of the tax shown on an original return. If, in such situation, the original return were not disregarded, the regulation itself would provide that the substantial understatement addition to tax could be avoided by filing a delinquent return.
See Commissioner v. Acker, 361 U.S. 87, 91 (1959) (describing as a penalty an addition to tax for substantial underestimation of estimated tax); but see Helvering v. Mitchell, 303 U.S. 391, 404-405 (1938) (pointing out that the criminal fraud provisions are “introduced into the act under the heading ‘Penalties,’ ” while the civil fraud provisions are “introduced into the act under the heading ‘Additions to the Tax.’ ”
In addition, we have said in several opinions that failure to file without reasonable cause is in itself sufficient grounds justifying an addition to tax for negligence. Thus, more than one penalty would attach to the taxpayer who unreasonably fails to timely file.
It appears that respondent would have been justified in here determining an addition to tax under sec. 6651(a)(1) for, without reasonable cause, filing a delinquent return.
See, e.g„ Stamos v. Commissioner, 95 T.C. 624 (1990); Estate of McClanakan v. Commissioner, 95 T.C. 98 (1990); Woods v. Commissioner, 91 T.C. 88 (1988); Doxey v. Commissioner, T.C. Memo. 1991-150; Hamby v. Commissioner, T.C. Memo. 1990-516; Bush v. Commissioner, T.C. Memo. 1990-157, affd. without published opinion 921 F.2d 279 (9th Cir. 1990); Rinkel v. Commissioner, T.C. Memo. 1989-631; Patmon v. Commissioner, T.C. Memo. 1989-159; Jackson v. Commissioner, T.C. Memo. 1988-395; Montelone v. Commissioner, T.C. Memo. 1986-478.