Seaview Trading, LLC, Agk Inve v. Cir

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SEAVIEW TRADING, LLC, AGK No. 20-72416
INVESTMENTS, LLC, TAX MATTERS
PARTNER, Tax Ct. No.
Petitioner-Appellant, 1837-11

v.
OPINION
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.

Appeal from a Decision of the
United States Tax Court

Argued and Submitted October 18, 2021
San Francisco, California

Filed May 11, 2022

Before: Bridget S. Bade and Patrick J. Bumatay, Circuit
Judges, and William K. Sessions III, * District Judge.

Opinion by Judge Bumatay;
Dissent by Judge Bade

*
The Honorable William K. Sessions III, United States District
Judge for the District of Vermont, sitting by designation.
2 SEAVIEW TRADING V. CIR

SUMMARY **

Tax

The panel reversed the Tax Court’s summary judgment
in favor of the government, in a petition challenging a Final
Partnership Administrative Adjustment and involving
whether the three-year limitations period for adjustment of
partnership losses under 26 U.S.C. § 6229(a) had begun to
run, and remanded for further proceedings.

Taxpayer Seaview Trading, LLC, a California-based
limited liability company, is classified as a partnership for
federal tax purposes. Seaview believed it filed its 2001
partnership tax return (Form 1065) in July 2002, but the
Internal Revenue Service has no record of receiving it. In
2005, in response to a letter from an IRS revenue agent
notifying it that the IRS had not received its 2001 federal
income return, Seaview faxed the agent a signed copy of
Form 1065. The next month, the same IRS agent informed
Seaview that its 2001 return had been selected for
examination and requested further information, including all
copies of the signed Form 1065. In 2006, during an interview
of Seaview’s accountant, the IRS noted that the accountant
had previously provided a signed tax return and introduced
Form 1065 as an exhibit. In 2007, Seaview’s counsel mailed
another signed copy of the 2001 Form 1065 to an IRS
attorney.

In 2010, the IRS issued Seaview a Final Partnership
Administrative Adjustment (FPAA) for 2001. In that notice,
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 SEAVIEW TRADING V. CIR 3

the IRS stated that it had no record of a tax return filed by
Seaview for 2001, but that the partnership had provided a
copy of the return it claimed to have filed. The notice also
indicated that none of the income/loss/expense amounts in
the 2001 return were allowable. Seaview filed a petition in
the Tax Court challenging the adjustment of losses.

The Tax Court held that Seaview did not “file” a tax
return when it faxed a copy to the IRS agent or mailed a copy
to the IRS counsel and, in any case, the copies of the 2001
Form 1065 sent to the IRS in 2005 and 2007 were not
“returns.” Seaview and the IRS then settled all their disputes
but reserved Seaview’s right to appeal the Tax Court’s
decision.

The panel first addressed whether the limitations period
for adjustment of partnership losses under 26 U.S.C.
§ 6229(a) had begun to run. This issue turns on whether
Seaview’s tax return was ever “filed.” The panel held that
when (1) an IRS official authorized to obtain and receive
delinquent tax returns informs a partnership that a tax return
is missing and requests that tax return, (2) the partnership
responds by giving the IRS official the tax return in the
manner requested, and (3) the IRS official receives the tax
return, then the partnership has “filed” a tax return for
purposes of § 6229(a). Accordingly, the panel concluded
that Seaview’s 2001 tax return was filed when the IRS agent
requested the missing return, Seaview delivered it, and the
IRS acknowledged receipt during the auditing process in
connection with the FPAA. Because the return was filed in
2005, the IRS’s notice of FPAA in 2010 was untimely.

The panel next addressed whether Seaview’s belated
submission of its Form 1065 qualified as a “return.” The
panel applied the test under Beard v. Commissioner, 82 T.C.
4 SEAVIEW TRADING V. CIR

766, 777 (1984): (1) the document must purport to be a
return, (2) it must be executed under penalty of perjury, (3) it
must contain sufficient data to allow calculation of tax, and
(4) it must represent an honest and reasonable attempt to
satisfy the requirements of the tax law. Applying those
factors, the panel concluded that the Form 1065 was a
“return.”

Dissenting, Judge Bade wrote that because it is
undisputed that Seaview failed to file its return to the correct
location in Ogden, Utah, in the manner prescribed in the
applicable statute and regulations, either on time or
belatedly, that conclusion should end the inquiry and the
panel should affirm the Tax Court.
 SEAVIEW TRADING V. CIR 5

COUNSEL

Lisa S. Blatt (argued), Sarah M. Harris, J. Matthew Rice, and
Kimberly Broecker, Williams & Connolly LLP,
Washington, D.C.; David W. Foster and Armando Gomez,
Skadden Arps Slate Meagher & Flom LLP, Washington,
D.C.; for Petitioner-Appellant.

Anthony T. Sheehan (argued) and Arthur T. Catterall,
Attorneys; David A. Hubbert, Acting Assistant Attorney
General; Tax Division, United States Department of Justice,
Washington, D.C.; for Respondent-Appellee.

Professor T. Keith Fogg, Director; Janice Rovner Feldman,
Volunteer Attorney; Tax Clinic at the Legal Services Center
of Harvard Law School, Jamaica Plain, Massachusetts; for
Amici Curiae Center for Taxpayer Rights and Federal Tax
Clinic at the Legal Services Center of Harvard Law School.
6 SEAVIEW TRADING V. CIR

OPINION

BUMATAY, Circuit Judge:

Imagine you get a letter from an Internal Revenue
Service official saying that the IRS never received the tax
return you thought you filed four years ago. In response, you
fax a copy of your return to the IRS official. Two years go
by, you then talk with an IRS lawyer, who again asks you for
the same return. After that conversation, you send another
copy of the return.

Three more years pass. You then get a notice that the
IRS has decided to adjust your tax liability. The result: you
owe the IRS a lot more money.

How can this be?—you ask. The IRS normally has only
three years to adjust your taxes after you’ve filed your return.
Not so fast, says the IRS. The two times you sent copies of
the return to its officials didn’t count. You never mailed a
return to an IRS service center; so, the return was never
“filed.” And since you never “filed” a return, the IRS
explains that it can still come after you at any time.

But that’s not what the IRS has said elsewhere. The IRS
has alerted taxpayers many times that they can properly
“file” their returns by sending late returns to IRS officials
who ask for them. In fact, the IRS has said doing so is the
preferred way to send late returns.

That is exactly what happened here. Seaview Trading,
LLC twice responded to inquiries from IRS officials about
the whereabouts of its 2001 partnership tax return. And both
times, Seaview promptly delivered the return to the officials.
Rather than consider the return “filed,” the IRS claims
Seaview never filed a return. This logic defies the statutory
 SEAVIEW TRADING V. CIR 7

text, applicable regulations, IRS policies and practices, and
common sense. For those reasons, we reverse.

I.

Seaview Trading, LLC, a California-based limited
liability company, is classified as a partnership for federal
tax purposes. In 2001, Robert Kotick was Seaview’s
majority partner, owning over 99% of the company.
Robert’s father, Charles, was the minority partner. Seaview
believed it filed its partnership tax return—also known as a
Form 1065—for the 2001 tax year back in July 2002. In its
Form 1065 for 2001, Seaview reported a $35,459,542 loss
from a tax-shelter transaction. Seaview claims it mailed the
return to the IRS service center in Ogden, Utah—the correct
place to send timely returns. But the IRS has no record of
receiving such a filing. Even though Seaview has produced
a certified mail receipt for the return’s mailing, it concedes
that it cannot prove that the IRS received its 2001 return in
2002.

In March 2004, the IRS began auditing Robert Kotick’s
individual taxes for 2001 and 2002. As part of that audit,
Kotick provided the IRS an unsigned copy of Seaview’s
2001 Form 1065. The IRS did not audit Seaview as part of
Kotick’s review since partnerships require a separate audit.

In July 2005, an IRS revenue agent sent Seaview a letter
notifying the partnership that the IRS had not received its
2001 federal income tax return. Attached to that letter was
a request to “[p]lease produce the following information and
documents”:

1. Did Seaview Trading file a Form 1065
(U.S. Return of Partnership Income) or other
Federal Income tax return for its taxable year
8 SEAVIEW TRADING V. CIR

2001? If so, what type of form did it file, what
service center was the return filed with, and
when was the return filed?

2. Provide copies of all retained copies of the
return referred to in paragraph 1, above.

3. Provide copies of all receipts and other
proof of mailing of the return referred to in
paragraph 1, above.

In response, in September 2005, Seaview’s accountant
faxed the IRS revenue agent a signed copy of Seaview’s
2001 Form 1065 return, along with the certified mail receipt
purporting to show its delivery to the IRS. In the cover letter
to the IRS revenue agent, Seaview’s accountant stated: “As
we discussed, I have attached the 2001 tax return for
Seaview Trading LLC as well as the certified mailing.”

A month later, the same IRS revenue agent informed
Seaview that its 2001 return had been selected for
examination and requested further information. Once again,
the IRS letter requested “[a]ll retained copies of the signed
2001 Form 1065 Federal income tax return of Sea View [sic]
Trading and any amendments thereto.” The IRS also
requested documents related to specific entries on Seaview’s
2001 Form 1065.

As part of its examination, the IRS interviewed
Seaview’s accountant in January 2006. During the
interview, the IRS noted that the accountant had “previously
provided” Seaview’s signed 2001 tax return and introduced
the Form 1065 as an exhibit. In June 2007, the IRS also
interviewed Robert Kotick. Again, the IRS acknowledged
that it “obtained from [Seaview’s accountant] a Form 1065
 SEAVIEW TRADING V. CIR 9

prepared for Seaview Trading, LLC, for its tax year 2001.”
The IRS also entered the Form 1065 as an exhibit for the
interview. In July 2007, Seaview’s counsel mailed another
signed copy of the 2001 tax return to an IRS attorney
“[p]ursuant to [their] prior conversation.”

More than three years later, in October 2010, the IRS
issued Seaview a Final Partnership Administrative
Adjustment for the 2001 tax year. In that notice, the IRS
stated that “[p]er Internal Revenue Service records, no tax
return was filed by [Seaview] for 2001,” but said, “[d]uring
the examination,” the partnership provided “a copy of a 2001
tax return which taxpayer claimed to have filed.” The IRS
then determined that “none of the income/loss/expense
amounts reflected on the 2001 unfiled tax return provided by
[Seaview was] allowable.” It then informed Seaview that it
would adjust its 2001 reported loss from over $35 million to
zero dollars.

In March 2011, Seaview petitioned the Tax Court to
challenge the adjustment of its partnership losses. Seaview
moved for summary judgment asserting that the 2010 tax
adjustment was time-barred under the three-year statute of
limitations. See 26 U.S.C. § 6229(a) (2000), repealed by
Bipartisan Budget Act of 2015, Pub. L. No. 114-74, 129 Stat.
584, 625, § 1101(a). The Tax Court disagreed. It held that
(1) Seaview did not “file” the tax return by faxing a copy to
the IRS revenue agent or by mailing a copy to the IRS
counsel, and (2) in any case, the copies of the 2001 Form
1065 sent to the IRS in 2005 and 2007 were not “returns.”
Seaview and the IRS then settled all their disputes but
preserved Seaview’s right to appeal the Tax Court’s denial
of summary judgment.

Seaview now appeals. We review the Tax Court’s
resolution of a summary judgment motion and
10 SEAVIEW TRADING V. CIR

interpretations of the Tax Code de novo. Sollberger v.
Comm’r, 691 F.3d 1119, 1123 (9th Cir. 2012); Meruelo v.
Comm’r, 691 F.3d 1108, 1114 (9th Cir. 2012).

II.

Seaview challenges the IRS’s adjustment of its
partnership losses, which it says came too late. Seaview
contends that a tax return is “filed” when it is delivered to
and received by an IRS official who requests it. So the
limitations clock began, it argues, when Seaview delivered
its return to an IRS revenue agent in September 2005. If so,
the three-year limitations period long expired by the time the
IRS adjusted Seaview’s losses in October 2010. See
26 U.S.C. § 6229(a) (2000). The IRS, on the other hand,
insists that Seaview never filed its 2001 tax return and so the
statute of limitations never started running. See id.
§ 6229(c)(3).

So the question in this case: What counts as a tax return
“filing” for statute of limitations purposes under the Tax
Code? We hold that when (1) an IRS official authorized to
obtain and receive delinquent returns informs a partnership
that a tax return is missing and requests that tax return,
(2) the partnership responds by giving the IRS official the
tax return in the manner requested, and (3) the IRS official
receives the tax return, the partnership has “filed” a tax
return for § 6229(a) purposes.

A.

A partnership must file a return of partnership income
every year. 26 U.S.C. § 6031. The Tax Equity and Fiscal
Responsibility Act of 1982 (“TEFRA”), Pub. L. No. 97-248,
§§ 401–407, 96 Stat. 324, 648–71, established special audit
and litigation procedures for certain partnerships. See
 SEAVIEW TRADING V. CIR 11

26 U.S.C. §§ 6221–6234 (2000); see also Seaview Trading,
LLC v. Comm’r, 858 F.3d 1281, 1284 (9th Cir. 2017). 1 For
partnerships subject to TEFRA, the IRS has three years to
adjust a partnership’s income:

[T]he period for assessing any tax imposed
. . . for a partnership taxable year shall not
expire before the date which is 3 years after
the later of—

(1) the date on which the partnership
return for such taxable year was filed,
or

(2) the last day for filing such return for
such year[.]

26 U.S.C. § 6229(a) (2000). But if a taxpayer never files a
return, the clock never begins to run. Instead, “in the case of
a failure by a partnership to file a return for any taxable year,
any tax attributable to a partnership item . . . may be assessed
at any time.” Id. § 6229(c)(3). So whether an IRS’s tax
assessment is timely depends on when a partnership’s tax
return is “filed.”

Yet the Tax Code doesn’t define when a tax return is
“filed.” See Coffey v. Comm’r, 987 F.3d 808, 812 (8th Cir.
2021) (“The Internal Revenue Code and the IRS regulations
do not define the terms ‘file’ or ‘filed.’”). Rather, the Tax

1
The Bipartisan Budget Act of 2015 repealed TEFRA’s partnership
procedures. See Pub. L. No. 114-74, 129 Stat. 584, 625, § 1101(a). But
those amendments generally became effective for “partnership taxable
years beginning after December 31, 2017.” Id. at 638; see also 15 W.
17th St. LLC v. Comm’r, 147 T.C. 557, 580 (2016).
12 SEAVIEW TRADING V. CIR

Code states that each partnership return “shall be filed or
made at such time, in such manner, and at such place as may
be prescribed in regulations.” 26 U.S.C. § 6230(i) (2000).

IRS regulations, in turn, specify the time, manner, and
place of filing partnership returns:

(e) Procedural requirements—

(1) Place for filing. The return of a
partnership must be filed with the
service center prescribed in the
relevant IRS revenue procedure,
publication, form, or instructions to
the form (see § 601.601(d)(2)).

(2) Time for filing. The return of a
partnership must be filed on or before
the fifteenth day of the fourth month
following the close of the taxable year
of the partnership.

(3) Magnetic media filing. For magnetic
media filing requirements with
respect to partnerships, see section
6011(e)(2) and the regulations
thereunder.

26 C.F.R. § 1.6031(a)-1(e) (2001); see also id. § 1.6091-1(b)
(2001) (cross-referencing § 1.6031(a)-1(e)(1) for the “place
for filing returns of partnership income”). The regulations
also establish the “consequences” for failing to file a
partnership return. Id. § 1.6031(a)-1(a)(4) (cross-
referencing the penalties of 26 U.S.C. §§ 6229(a), 6231(f),
6698, and 7203). The Tax Code penalizes the failure to file
 SEAVIEW TRADING V. CIR 13

a return “at the time” prescribed, but doesn’t specify any
penalty for filing a return at the wrong place. See 26 U.S.C.
§§ 6698(a)(1), 7203.

So the IRS regulations expressly govern the time and
place to file timely partnership returns. They must be filed
by April 15 following the tax year and, for partnerships with
a principal place of business in California, sent to the IRS
Service Center in Ogden, Utah. See Form 1065,
Instructions. If Seaview was seeking to show a timely filing
of its partnership return, it could not do so. That’s because
Seaview concedes that it can’t prove its Form 1065 was ever
received by the service center in Ogden. But that’s not the
question before us. The question is whether Seaview
belatedly “filed” its tax return by following the instructions
of IRS officials and delivering the returns to them. On this
front, the regulations do not appear to govern.

Section 1.6031(a)-1(e) doesn’t expressly establish how
taxpayers are to file delinquent returns. Nothing in the text
says that the time and place requirements apply to untimely
returns. Indeed, by definition, if a taxpayer files a return
after April 15, the taxpayer can’t comply with § 1.6031(a)-
1(e) since the regulation specifies that date as when the
return “must be filed.” 26 C.F.R. § 1.6031(a)-1(e)(2). So,
at most, the regulation is silent on filing procedures for late
returns.

And no IRS regulation prohibits the filing of untimely
returns with a requesting IRS official. As the IRS itself
noted, there is more than one place for a partnership to
properly file a return. For example, the law permits
partnerships to hand-carry returns to certain IRS offices. See
26 U.S.C. § 6091(b)(4) (2000) (allowing filing by hand-
carrying to an appropriate internal revenue district);
26 C.F.R. § 1.6091-2(d)(1) (allowing filing by hand-
14 SEAVIEW TRADING V. CIR

carrying to “any person assigned the responsibility to receive
hand-carried returns in the local Internal Revenue Service
office”). So an IRS service center isn’t the only place a
partnership can file its returns—even when timely.

Because the Tax Code and the regulations do not define
when a delinquent return is “filed,” we turn to the ordinary
meaning of the term. See Lang v. Comm’r, 289 U.S. 109,
111 (1933) (“Giving the words of the [Tax Code] their
natural and ordinary meaning, . . . must be done[.]”); see also
Comm’r v. Brown, 380 U.S. 563, 571 (1965) (“Generally
speaking, the language in the Revenue Act, just as in any
statute, is to be given its ordinary meaning[.]” (simplified)).
The Supreme Court confronted the ordinary meaning of
“file” in another federal statute back in 1916:

The word ‘file’ was not defined by Congress.
No definition having been given, the
etymology of the word must be considered
and ordinary meaning applied. The word
‘file’ is derived from the Latin word ‘filum,’
and relates to the ancient practice of placing
papers on a thread or wire for safe-keeping
and ready reference. Filing, it must be
observed, is not complete until the document
is delivered and received. . . . A paper is filed
when it is delivered to the proper official and
by him received and filed.

United States v. Lombardo, 241 U.S. 73, 76 (1916); see
Hotel Equities Corp. v. Comm’r, 65 T.C. 528, 531 (1975)
(applying Lombardo’s definition to the Tax Code). This
definition tracks modern dictionary definitions. For
example, to “file” means “[t]o deliver an instrument . . . to
the proper officer . . . for the purpose of being kept on file by
 SEAVIEW TRADING V. CIR 15

him as a matter of record and reference in the proper place,”
File, Black’s Law Dictionary (5th ed. 1979), or “to place in
a file” or “to place on record, file an application,” File,
Oxford American Dictionary (1980).

Our court has held that “a return is ‘filed’ at the time it is
delivered to the IRS.” United States v. Hanson, 2 F.3d 942,
946 (9th Cir. 1993). In that case, we considered the meaning
of a “filing” for a fraudulent tax return charge under
26 U.S.C. § 7206. We concluded that a “filing” was
accomplished when the taxpayer personally “mailed the
forms” and the “IRS received them.” Id. We held it
irrelevant that the IRS “never fully processed” the return. Id.
So, in the ordinary sense, a tax return is “filed” if delivered
to a proper IRS official and the official received the return.
Accord Heard v. Comm’r, 269 F.2d 911, 913 (3d Cir. 1959)
(“[U]nless otherwise defined by statute, filing does not occur
until the paper to be filed is delivered to, received and filed
by the proper official.”).

Based on the ordinary meaning of “filing,” we hold that
a delinquent partnership return is “filed” under § 6229(a)
when an IRS official authorized to obtain and process a
delinquent return asks a partnership for such a return, the
partnership delivers the return to the IRS official in the
manner requested, and the IRS official receives the return. 2

2
The dissent posits a hypothetical traffic statute, which it claims
undermines our plain-meaning interpretation of § 6229(a). Dissent 37–
39. But the hypothetical only proves our point. The dissent’s
hypothetical statute, unlike § 1.6031(a)–1(e), contains two independent
commands: (1) to stop at all STOP signs, and (2) to obey posted speed
limits. Id. at 37. Violation of either command violates the law. But
here, § 1.6031(a)–1(e) establishes two conditions necessary to comply
with the filing command: the tax return must be (1) filed by April 15 and
16 SEAVIEW TRADING V. CIR

B.

The IRS’s own internal guidance verifies that delinquent
returns need not be sent to an IRS service center and may be
filed with authorized IRS officials. And while internal
guidance, such as the IRS Manual and IRS Policy
Statements, don’t have the force of law and don’t confer
rights on a taxpayer, Fargo v. Comm’r, 447 F.3d 706, 713
(9th Cir. 2006), they show that the IRS agrees that no
regulation governs the process of “filing” belated returns and
that it too follows the term’s ordinary meaning. In short, the
IRS views the law one way as an internal matter and another
way for litigation advantage. We decline to follow this
twisted logic.

Let’s start with the IRS Manual. The Manual outlines
several steps that an IRS examiner must undertake when
dealing with a delinquent tax return:

• First, the IRS Manual encourages its
examiners to “[s]ecur[e] a valid voluntary
tax return from the taxpayer.” Internal
Revenue Manual 4.12.1.1.3 (2005).

(2) sent to the IRS service center. Under a straightforward reading of
§ 1.6031(a)–1(e), the only way to comply with its command is to satisfy
both conditions. It is thus silent on what happens when only one
condition—here, the filing deadline—cannot be met. Indeed, even under
the dissent’s hypothetical, what is a driver supposed to do if a police
officer directs the driver to blow through a STOP sign? Can the driver
be cited for complying with the police officer’s command rather than
stopping at the STOP sign? That’s closer to the scenario here—the IRS
directed Seaview to submit its partnership return directly to the agent and
Seaview complied. But the IRS still argues that Seaview never complied
with filing the return.
 SEAVIEW TRADING V. CIR 17

• Second, the Manual instructs IRS staff to
“[a]dvise the taxpayer of the requirement
to file all delinquent returns” and
“[a]dvise the taxpayer to deliver the
returns promptly to the examiner” along
with an explanation for the reason for the
delay in filing. Id. § 4.12.1.4.2
(emphases added).

• Third, once obtained, the IRS examiner is
instructed to make a copy of the
delinquent return and write on the copy:
“PROCESS THE COPY AS AN
ORIGINAL.” Id. § 4.4.9.5.8.

• Fourth, the examiner must immediately
forward the copy of the return to the Case
Processing Support unit “no later than the
day after the return [wa]s received,” id.
§ 4.4.9.5.14.

• Finally, the Case Processing Support unit
must send the return “to the appropriate
campus,” i.e., the appropriate IRS service
center, for processing. Id. § 4.4.9.7.3.

In short, the IRS Manual requires IRS officials to request,
obtain, and accept delinquent returns from the taxpayer and
then process them. Contrary to the IRS’s position here, the
IRS Manual does not take the view that a delinquent return
must be sent to a service center to be considered “filed.”

An IRS Policy Statement also confirms that delinquent
returns need not be filed at an IRS service center. Rather, in
a 2006 Policy Statement, the IRS publicly represented that it
18 SEAVIEW TRADING V. CIR

will “accept[]” all delinquent returns received from
taxpayers—no matter how the IRS receives the return. IRS
Policy Statement 5-133 (2006). The IRS expressly stated
that “[a]ll delinquent returns submitted by a taxpayer,
whether upon his/her own initiative or at the request of a
Service representative, will be accepted.” Id. This statement
thus makes clear that members of the public may send their
returns to an IRS “representative” and trust that the return
will be filed. Id.

If there was any lingering doubt about the IRS’s internal
views on the filing of delinquent returns, an IRS Office of
Chief Counsel advice memorandum puts that to rest. In the
memorandum, the IRS considered whether “a revenue
officer can require a taxpayer to file delinquent returns
directly with the revenue officer rather than mailing the
returns to the appropriate Service Center.” IRS Office of
Chief Counsel, Chief Counsel Advice No. 199933039,
Filing Delinquent Returns Directly With Revenue Officers
(Aug. 20, 1999), at 1. 3 This memorandum was prompted by
a local practitioner challenging the “frequent[]” practice of
IRS revenue officers demanding taxpayers file delinquent
returns with them, rather than mailing the returns to an IRS
service center. Id. at 2. The IRS first observed that neither
the Tax Code nor regulations “make any reference to
delinquent returns.” Id. at 3 n.1. But after surveying the
applicable law, the IRS concluded that “revenue officers in
the performance of their assigned duties can request that
taxpayers file their delinquent returns with the revenue
officer instead of mailing the delinquent return to the
applicable Service Center.” Id. at 4 (emphasis added).

3
While this Chief Counsel Advice didn’t directly analyze the filing
of delinquent partnership returns, the IRS hasn’t provided any reason to
apply a different analysis to such returns.
 SEAVIEW TRADING V. CIR 19

What’s more, the memorandum expressed a preference for
delinquent returns being filed with IRS officers. Given the
costs and delays with sending a return to a service center, the
Chief Counsel advised that “it is generally in the taxpayer’s
best interest[] to file the delinquent return directly with the
revenue officer instead of mailing it to the appropriate
Service Center.” Id. (emphasis added); see also id. at 4 n.2.
So even the IRS Chief Counsel recognizes that taxpayers can
and should file a late return directly with the revenue officer
rather than send it to a service center.

The IRS doesn’t deny that its internal procedures conflict
with its current litigation position, but only claims that its
internal “procedures are primarily for the benefit of the IRS,
not taxpayers.” That may be so, but the point is not whether
these internal documents benefit taxpayers. The point is that
the IRS’s own directives confirm the plain language of the
Tax Code and IRS regulations—that taxpayers may file
delinquent returns with authorized officials. And the
inconsistency of the IRS’s position is troubling: The IRS
wants the ability to direct taxpayers to submit delinquent
returns to its authorized officials, while maintaining the
power to unilaterally decide whether the returns are “filed”
for statute-of-limitations purposes. We reject this
nonsensical position and instead follow the ordinary
meaning of the Tax Code.

C.

The IRS and dissent insist that delinquent returns
delivered to IRS officials cannot be considered “filed”
because of caselaw requiring “meticulous compliance by the
taxpayer with all named conditions” to secure the benefit of
the statute of limitations. Lucas v. Pilliod Lumber, 281 U.S.
245, 249 (1930). But such an argument only begs the
question of what the “named conditions” are for filing
20 SEAVIEW TRADING V. CIR

delinquent returns. As discussed above, the Tax Code and
regulations are silent on the proper procedures for filing a
delinquent tax return. Instead, it is the ordinary meaning of
“filing” under § 6229(a) that governs delinquent returns. So
when an authorized IRS official requests a missing return
from a taxpayer, the taxpayer complies with the conditions
of filing by delivering the return in the manner requested.

The IRS and dissent also cite several out-of-circuit cases
holding that submitting a return to IRS personnel or to the
wrong place doesn’t constitute a “filing.” But none of those
cases involve the facts here—when an IRS revenue agent
authorized to obtain delinquent returns requested and
received the return from a taxpayer. See, e.g., Coffey,
987 F.3d at 813–15 (no filing when taxpayer sent return to
the Virgin Islands’ Bureau of Internal Revenue); Comm’r v.
Estate of Sanders, 834 F.3d 1269, 1278–79 (11th Cir. 2016)
(same); Allnutt v. Comm’r, 523 F.3d 406, 408–13 (4th Cir.
2008) (no filing when taxpayer hand-delivered return to an
unidentified man in the IRS District Director’s office);
O’Bryan Bros. v. Comm’r, 127 F.2d 645, 647 (6th Cir. 1942)
(no filing when taxpayer gave return to revenue agent under
old tax system—no longer in force today—that allowed only
tax “collector” to receive returns); W.H. Hill Co. v. Comm’r,
64 F.2d 506, 507–08 (6th Cir. 1933) (same).

To be sure, several Tax Court cases support the IRS’s
view in this litigation. See, e.g., Friedmann v. Comm’r,
82 T.C.M. (CCH) 381, 2001 WL 883222, at *6 (2001) (no
filing when the taxpayer mailed the return to an auditing IRS
agent because the “taxpayer [did not] meticulously comply
with all conditions for application of the statute”). But we
find more persuasive the Tax Court’s analysis in Dingman v.
Commissioner, 101 T.C.M. (CCH) 1562, 2011 WL 2150027
(2011). In Dingman, the Tax Court held that the hand-
 SEAVIEW TRADING V. CIR 21

delivery of returns to IRS Criminal Investigation Division
special agents constituted “filing.” Id. at *1. The court
reasoned that (1) IRS could not prove that the special agents
lacked authority to accept the returns; (2) the Commissioner
has recognized revenue officers’ authority to receive
delinquent returns for filing; (3) the IRS Manual
contemplated that the special agents could receive
delinquent returns and instruct IRS employees on processing
of delinquent returns; and (4) the return was ultimately
processed by the IRS. Id. at *11–12. Such facts closely
mirror this case.

D.

We thus hold that’s Seaview’s Form 1065 for tax year
2001 was “filed” in September 2005 when the IRS revenue
agent requested the missing return and Seaview later
delivered it to the revenue agent. 4 And there’s no question
that the IRS received the return since it was acknowledged
during the auditing process and used to issue the Final
Partnership Administrative Adjustment. And because the
2001 return was “filed” by September 2005, the IRS’s notice
of adjustment in October 2010 was untimely. See 26 U.S.C.
§ 6229(a) (2000). 5

4
Since no party challenges the authority of the IRS revenue agent
here to obtain Seaview’s tax return, we need not decide which IRS
officials fall into the category of officials who may obtain and process
delinquent returns. But the IRS Office of Chief Counsel has held that
revenue officers at the GS-9, GS-11, and GS-12 levels have authority to
“secur[e] and process[] delinquent returns.” IRS, Chief Counsel Advice
No. 199933039 (Aug. 20, 1999), at 3.
5
We don’t reach whether the mailing of the return to IRS counsel in
July 2007 also constituted a “filing” since the 2005 filing resolves the
matter.
22 SEAVIEW TRADING V. CIR

III.

One more question remains in this case. That’s because
the Tax Court also ruled that Seaview’s belated submission
of its Form 1065 didn’t even qualify as a “return.” In the
Tax Court’s view, Seaview didn’t “intend” to send a “return”
when it faxed the Form 1065 to the IRS revenue agent in
2005 because it included a copy of the certified mail receipt
to show that the return had been previously filed in July
2002. We disagree.

While the Tax Code doesn’t define “return,” we use an
objective inquiry—not the subjective intent of the filer—to
assess whether a document is a return. See Badaracco v.
Comm’r, 464 U.S. 386, 397 (1984). 6 We look at whether the
documents “purported to be returns, were sworn to as such,
and appeared on their faces to constitute endeavors to satisfy
the law.” Id. We also use the “widely-accepted” test of what

6
The dissent contends that Badaracco also controls when a
delinquent return is “filed” under § 6229(a) for statute-of-limitation
purposes. Dissent 51–54. But a quick reading of the case shows that is
not the case. As Justice Blackmun states right off the bat, “[t]he issue
before [the Court was] the proper application of §§ 6501(a) and (c)(1) to
the situation where a taxpayer files a false or fraudulent return but later
files a nonfraudulent amended return.” Badaracco, 464 U.S. at 388.
Under § 6501(c)(1), the IRS may assess and collect taxes “at any time”
if the taxpayer files a “fraudulent return.” So the Court had to confront
whether a nonfraudulent return submitted after a fraudulent one nullifies
the limitless statute of limitations provided in § 6501(c)(1). The Court
looked to the unambiguous text of the statute to hold that it does not.
464 U.S. at 392–93. But this straightforward interpretation of § 6501
doesn’t bear on what counts as a delinquent “filing” under § 6229(a).
Foreclosed by Badaracco’s actual holding, the dissent is left to argue
that Badaracco requires us to “strictly construe[]” § 6229’s statute of
limitations “in favor of the government.” Dissent 64. But even so, we
don’t think that means we must give the government carte blanche to
apply § 6229 however and whenever it wants.
 SEAVIEW TRADING V. CIR 23

constitutes a “return” found in Beard v. Commissioner,
82 T.C. 766, 777 (1984). In re Hatton, 220 F.3d 1057, 1060
(9th Cir. 2000). Under Beard, (1) the document “must
purport to be a return”; (2) “it must be executed under
penalty of perjury”; (3) “it must contain sufficient data to
allow calculation of tax”; and (4) “it must represent an
honest and reasonable attempt to satisfy the requirements of
the tax law.” Id. at 1060–61 (simplified).

The first Beard factor is straightforward. The IRS
revenue agent specifically asked for Seaview’s 2001
“return” in July 2005 and received the faxed Form 1065 in
response. By the context of this exchange, the Form 1065
faxed over by Seaview unambiguously purports to be a
“return.” See Coffey v. Comm’r, 150 T.C. 60, 84–89 (2018)
(holding that whether a document constitutes a “return”
takes “consideration of the context of a particular case”),
reversed on other grounds by Coffey, 987 F.3d at 808.
Indeed, the IRS treated the document as such. For example,
in the notice adjusting Seaview’s partnership losses, the IRS
expressly described the Form 1065 as a “tax return,” while
maintaining that it was “unfiled.” We also disagree with the
Tax Court that providing the certified mail receipt with the
Form 1065 showed that the document was not a “return.”
Instead, the mail receipt goes to Seaview’s intent to “file”
the Form (which we resolve above), not to whether the faxed
Form 1065 purports to be a Form 1065.

Second, the Form 1065 was signed under penalty of
perjury by Robert Kotick, Seaview’s majority partner. The
IRS disputes that because the faxed Form 1065 didn’t bear
an original signature. But the lack of a wet signature doesn’t
necessarily prevent a document from being a “return.” See
Coffey, 150 T.C. at 91–92 (holding that a scanned copy of
the return counts as a return because nothing “in the Code or
24 SEAVIEW TRADING V. CIR

regulations . . . explicitly calls for an ‘original’ signature”);
see also In re Harold, 588 B.R. 484, 495 (Bankr. E.D. Mich.
2018) (“[A]s a matter of law, a copy of a signature rather
than a wet-ink original signature [does not] necessarily
invalidate[] the filing of a return.”). Indeed, the IRS Office
of Chief Counsel has interpreted the Tax Code’s signature
requirements under 26 U.S.C. §§ 6061 and 6065 to “be
satisfied by a faxed copy of a taxpayer’s manual signature if
the taxpayer adopts the faxed copy as his or her signature for
purposes of the return.” IRS Office of Chief Counsel, Chief
Counsel Advice No. 200137053, Facsimile Signatures
(Sept. 14, 2001), at 3. 7 The IRS here confirmed that Kotick
signed the faxed Form 1065 during his 2007 deposition.

Third, Seaview’s faxed Form 1065 contained sufficient
data for the IRS to calculate the tax liability. The submitted
form showed comprehensive details of Seaview’s income,
assets, and deductions for 2001. The IRS then used the faxed
Form 1065 to adjust Seaview’s claimed loss of $35,496,542
down to zero. And the IRS made clear that its assessment
came directly from the copy of the 2001 tax return received
from Seaview.

Lastly, Seaview’s faxed Form 1065 represented “an
honest and reasonable attempt to satisfy the requirements of
the tax law.” Hatton, 220 F.3d at 1060–61. In assessing this
factor, we look to the timing and context of the purported
return’s submission. See In re Smith, 828 F.3d 1094, 1097
(9th Cir. 2016) (holding that a tax filing was not “honest and
reasonable” when created seven years after the return was
due and three after the IRS already issued an assessment). In

7
Once again, we look to IRS internal guidance not as granting
taxpayers an enforceable right, but as confirming our interpretation of
the law.
 SEAVIEW TRADING V. CIR 25

September 2005, less than two months after learning that the
IRS had not received its 2001 tax return, Seaview faxed over
the Form 1065 to the IRS revenue agent. The IRS was then
able to use the faxed Form 1065 to facilitate its audit and
complete its assessment. Under these circumstances, we
have no trouble finding that the faxed Form 1065 was an
honest and reasonable attempt at complying with the law.

Because the Form 1065 that Seaview faxed to the IRS in
2005 meets all the Beard criteria, we hold that the faxed
Form 1065 was a “return.” 8

IV.

The judgment of the Tax Court is reversed, and the case
is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

BADE, Circuit Judge, dissenting:

The IRS generally has three years after the date a
partnership tax return is filed to adjust that return and assess
taxes. 26 U.S.C. § 6229(a) (2000). However, when a tax
return is not filed, this three-year statute of limitations does
not run, and “any tax . . . arising in such year may be
assessed at any time.” Id. § 6229(c)(3). The issue here is
whether Seaview Trading, LLC “filed” its 2001 partnership
return when it shared what it described as a “retained copy”
of the return with IRS officials in 2005 and 2007, as it now

8
Since the September 2005 faxing of the Form 1065 constituted
both a “return” and a “filing,” we do not reach whether the July 2007
mailing of the Form 1065 also constituted a “return.”
26 SEAVIEW TRADING V. CIR

argues. If so, the IRS’s adjustment of that return and
assessment of taxes in 2010 were time-barred. If not, the
IRS’s rejection of Seaview’s claimed $35 million loss from
a tax shelter, and assessment of the resulting taxes, were not
time-barred, and we must affirm the Tax Court’s rejection of
Seaview’s claims.

For many years—indeed, in all its communications with
the IRS and in litigating this case before the Tax Court—
Seaview maintained that it had filed its 2001 partnership
return in 2002, and that it had filed the return to the correct
location, the IRS service center in Ogden, Utah. 1 See
26 C.F.R. § 1.6031(a)-1(e) (2001); IRS, Instructions for
Form 1065 at 4 (2001). Now, Seaview acknowledges that it
cannot show that its return ever reached the Ogden service
center. It is therefore undisputed that Seaview failed to file
its return to the correct location, either on time or belatedly.
That conclusion should end our inquiry, and we should
affirm the Tax Court.

Indeed, the majority concedes that Seaview was required
to file its return with the Ogden service center in 2002, in the
manner prescribed in the applicable statute and regulations.
Maj. Op. 11–13. And the majority concedes that Seaview’s
2001 partnership return never reached this location, the IRS
never processed it as a filed return, and Seaview cannot show
that it complied with the regulations. Maj. Op. 13.
Therefore, under the plain text of the Tax Code and IRS
regulations and the unanimous weight of applicable

1
The Tax Code provides that returns “shall be filed or made at such
time, in such manner, and at such place as may be prescribed in
regulations.” 26 U.S.C. § 6230(i) (2000). The regulations, in turn, set
forth the specific place, time, and manner requirements for filing
partnership returns. See 26 C.F.R. § 1.6031(a)-1(e) (2001).
 SEAVIEW TRADING V. CIR 27

precedent, the conclusion in this case is clear: Seaview
never filed its 2001 partnership return, and the IRS was
permitted to adjust Seaview’s 2001 partnership return at any
time. See 26 U.S.C. § 6229(c)(3) (2000); id. § 6230(i);
26 C.F.R. § 1.6031(a)-1(e) (2001).

The majority, however, goes to great lengths to avoid the
result that the plain text of the Tax Code and the IRS
regulations compel, taking issue with what it sees as the
IRS’s “inconsistency.” Maj. Op. 6–7, 16, 19. The majority
relies on IRS internal guidance documents to conclude that
requiring Seaview to file its partnership return at the time
and place designated in the regulations is unfair. 2 Maj. Op.
16–19.

In its attempt to remedy this perceived unfairness, the
majority brushes aside all sources of binding and persuasive
legal authority. For the majority, it matters little that the Tax
Code and regulations specify the mandatory time and place
for filing a tax return, 26 U.S.C. § 6230(i) (2000); 26 C.F.R.
§ 1.6031(a)-1 (2001), and that Seaview never complied with
those provisions. Maj. Op. 10–15. And to reach its desired
result, the majority disregards Supreme Court precedent
holding that taxpayers must meticulously comply with filing
requirements to benefit from the statute of limitations, Lucas
v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930), and that we
must strictly construe the statute of limitations in favor of the
government, Badaracco v. Comm’r, 464 U.S. 386 (1984).

2
To be sure, the majority avoids explicitly complaining that the Tax
Code and regulations are “unfair.” But the opening paragraphs of the
opinion—in which the majority asks its readers to “imagine” that they,
like Seaview, were mistreated when the IRS did not treat unfiled returns
as properly filed returns, and laments “How can this be?”—expose the
majority’s underlying angst that the filing requirements are unfair. Maj.
Op. 6–7.
28 SEAVIEW TRADING V. CIR

Maj. Op. 19, 22 n.6. The majority also tramples the
overwhelming body of case law from our sister circuits and
the Tax Court rejecting the result it reaches. Maj. Op. 20–
21.

How does the majority manage to sidestep so much
binding and persuasive legal authority? In what can only be
described as an astonishing and unprecedented holding, the
majority decides that because Seaview violated some
subsections of the applicable statute and regulation, the
remaining provisions do not apply to it. Maj. Op. 13–15 &
n.2. In other words, the majority reasons that the parts of the
law governing where to file a partnership return do not apply
in this case because Seaview did not comply with the parts
of the law governing when to file a partnership return. Maj.
Op. 13–15 & n.2.

Thus, the majority reads a massive gap into the
regulations by concluding that 26 C.F.R. § 1.6031(a)-1(e)
(2001)—the regulation setting forth the place, time, and
manner requirements for filing partnership returns—only
applies to timely returns. Maj. Op. 13. Under the majority’s
sweeping holding, as long as a taxpayer does not comply
with the regulatory deadlines for filing a return (or in other
words as long as the taxpayer submits a return late), the
taxpayer is not subject to the regulation’s other provisions
and can “file” its return by sending it to virtually any IRS
employee. Maj. Op. 10, 21 & n.4. The majority thus effects
a sea change in the interpretation of long-standing, and
previously uncontroversial, filing regulations.

The majority’s analysis hinges in large part on IRS
internal guidance documents, even though the majority
concedes, as it must, that these documents lack the force of
law and do not confer rights on taxpayers. See e.g., Fargo
v. Comm’r, 447 F.3d 706, 713 (9th Cir. 2006); Maj. Op. 16.
 SEAVIEW TRADING V. CIR 29

The majority errs by focusing on what is ultimately a red
herring when it attempts to find support for its position in
internal IRS guidance documents.

Moreover, the majority’s conclusion—that the IRS
failed to follow its internal guidance and therefore it is unfair
to apply the Tax Code and regulations to conclude that
Seaview failed to file its 2001 partnership return—impliedly
applies estoppel to prevent the IRS from assessing taxes
against Seaview for the 2001 tax year. But neither the
majority nor Seaview has established any of the elements of
estoppel. The majority’s attempt to apply an implied form
of estoppel cannot be countenanced.

As described in greater detail below, in addition to being
deeply implausible and contrary to law, the majority’s
analysis and conclusions are logically absurd and should not
be the holding of this court. As an initial matter, the
majority’s conclusions are foreclosed by the plain text of the
Tax Code and IRS regulations. Undaunted, the majority fills
the gap that it reads into the regulations by creating its own,
and entirely novel, rule for filing delinquent returns. Maj.
Op. 6–7. If this sort of judicial policymaking were not bad
enough, the majority’s holding also misapplies IRS internal
guidance, misconstrues the record, and wrongly implies that
the government may be equitably estopped from applying
the Tax Code and regulations under these circumstances.
See Maj. Op. 7–9, 16–21. Just as problematically, the
majority’s holding defies long-standing, binding Supreme
Court precedent, needlessly creates a circuit split, and
disregards the Tax Court’s expertise and authority on matters
of nationwide importance. I respectfully dissent.
30 SEAVIEW TRADING V. CIR

I.

The majority attempts to avoid the obvious conclusion
that Seaview failed to file its 2001 partnership return by
applying a sui generis method of statutory and regulatory
interpretation. It reasons that because the regulations state
both the place and time for filing a partnership return, the
regulations apply only to timely returns. Maj. Op. 13. Thus,
delinquent returns—which is how the majority characterizes
the copies Seaview sent to IRS employees in 2005 and
2007—are not subject to the regulations. Maj. Op. 13–15.
After creating this atextual distinction, the majority is left
with a regulatory gap of its own making: the correct filing
procedures for delinquent returns. See Maj. Op. 13 –15. The
majority takes the opportunity to fill this perceived gap,
manufacturing (one might just as easily say legislating) out
of whole cloth its own filing regime for delinquent returns.
Maj. Op. 10, 15, 21.

But the notion that “the Tax Code and regulations are
silent on the proper procedures for filing a delinquent tax
return” is flatly contradicted by the Code and regulations and
finds no support in any of the case law. Maj. Op. 20. And
once this erroneous conclusion is removed from the majority
opinion, the remainder of its reasoning cannot stand, as the
majority tacitly concedes. Maj. Op. 13, 20.

A.

The validity of the IRS’s 2010 adjustment turns on
whether Seaview ever filed its 2001 partnership return. See
26 U.S.C. § 6229(a), (c)(3) (2000). Neither the Tax Code
nor IRS regulations “define the terms ‘file’ or ‘filed.’”
Coffey v. Comm’r, 987 F.3d 808, 812 (8th Cir. 2021) (citing
Allnutt v. Comm’r, 523 F.3d 406, 412 (4th Cir. 2008)), cert.
denied, 142 S. Ct. 758 (2022). But, as the majority
 SEAVIEW TRADING V. CIR 31

acknowledges, Maj. Op. 20–21, “[c]ourts have long held . . .
that in order for returns to be considered ‘filed’ for purposes
of setting the period of limitations in motion, the returns
must be delivered, in the appropriate form, to the specific
individual or individuals identified in the Code or
Regulations.” Allnutt, 523 F.3d at 412–13.

Here, the Code provides that returns “shall be filed or
made at such time, in such manner, and at such place as may
be prescribed in regulations.” 26 U.S.C. § 6230(i) (2000).
The regulations include § 1.6031(a)-1, which governs
“[r]eturn[s] of partnership income.” See 26 C.F.R.
§ 1.6031(a)-1 (2001). That section, in turn, includes a
subsection, § 1.6031(a)-1(e), labeled “[p]rocedural
requirements,” which sets forth the specific place, time, and
manner requirements for filing partnership returns. Id.
§ 1.6031(a)-1(e)(1)–(3). The place for filing is “the service
center prescribed in the relevant IRS revenue procedure,
publication, form, or instructions to the form.” Id.
§ 1.6031(a)-1(e)(1). The time for filing is “on or before the
fifteenth day of the fourth month following the close of the
taxable year of the partnership.” Id. § 1.6031(a)-1(e)(2). As
everyone agrees, the service center prescribed in this case
was the IRS service center in Ogden, Utah. Maj. Op. 7, 13;
see IRS, Instructions for Form 1065 at 4 (2001).

Applying this straightforward statutory and regulatory
framework, informed by long-standing, binding precedent
that a taxpayer must show “meticulous compliance . . . with
all named conditions in order to secure the benefit” of the
statute of limitations, Lucas, 281 U.S. at 249, the obvious
conclusion, as the Tax Court found, is that because Seaview
cannot show that it sent its return to the Ogden service
center, it cannot show meticulous compliance with the
32 SEAVIEW TRADING V. CIR

regulations, and therefore cannot invoke the statute of
limitations.

The majority, seeking to avoid this result, Maj. Op. 19,
takes a different approach. After recounting the relevant
statutory and regulatory provisions, the majority summarizes
what those provisions say with the following unsupported
assertion: “So the IRS regulations expressly govern the time
and place to file timely partnership returns.” Maj. Op. 13
(emphasis added). This conclusion allows the majority to
reason that the “time and place requirements” do not “apply
to untimely returns,” which in turn allows the majority to
craft its own delinquent filing regulation based on “the
ordinary meaning” of the term “file.” Maj. Op. 10, 13–15.

As the majority admits, if its reading is incorrect, and
instead the regulatory place and time filing requirements
apply to Seaview, then Seaview’s argument fails, and the
IRS’s 2010 adjustment was not barred by the statute of
limitations. Maj. Op. 13, 19. Therefore, it is worth carefully
considering whether the majority is correct that the
regulations govern only “timely partnership returns” and are
“silent on the proper procedures for filing a delinquent tax
return.” Maj. Op. 13, 20. And that careful consideration
compels the conclusion that the majority is incorrect, and
that its approach is deeply flawed.

1.

Perhaps the most patent flaw in the majority’s conclusion
is its inconsistency with the text of the Tax Code, § 6230(i).
See Limtiaco v. Camacho, 549 U.S. 483, 488 (2007) (“As
always, we begin with the text of the statute.”). Section
6230(i) states that a tax return “shall be filed or made at such
time, in such manner, and at such place as may be prescribed
in regulations.” 26 U.S.C. § 6230(i) (2000).
 SEAVIEW TRADING V. CIR 33

Importantly, § 6230(i) uses the word “shall.” Id. “Shall”
ordinarily renders what follows it mandatory. See
Firebaugh Canal Co. v. United States, 203 F.3d 568, 573–
74 (9th Cir. 2000) (“The term ‘shall’ is usually regarded as
making a provision mandatory, and the rules of statutory
construction presume that the term is used in its ordinary
sense unless there is clear evidence to the contrary.”);
Antonin Scalia & Brian A. Garner, Reading Law: The
Interpretation of Legal Texts 114 (2012) (“[W]hen the word
shall can reasonably be read as mandatory, it ought to be so
read.”). Here, it is reasonable to read § 6230(i)’s use of
“shall” as mandatory. Nothing in the text suggests it is
optional for a taxpayer to disobey the regulations’ place,
time, or manner requirements. At a minimum, there is no
“clear evidence” to suggest that § 6230(i) is not a mandatory
provision. Firebaugh Canal Co., 203 F.3d at 574. The
majority certainly points to no such evidence.

In addition, § 6230(i) mandates compliance with all
three conditions of place, time, and manner. Place, time, and
manner are all linked by the word “and,” which is a
conjunctive word that, in this context, means that each
condition is required. See Confederated Tribes & Bands of
Yakama Nation v. Yakima County, 963 F.3d 982, 990 (9th
Cir. 2020) (“The most common meaning of the word ‘and’
is as a conjunction expressing the idea that the two concepts
are to be taken ‘together.’ Thus, when ‘and’ is used to join
two concepts, it is usually interpretated to require ‘not one
or the other, but both.’” (citations omitted)).

Accordingly, the majority’s theory that a taxpayer is
excused from place or manner requirements by failing to
adhere to time requirements is flatly foreclosed by the text
of § 6230(i). The statute is mandatory, and the place, time,
and manner conditions are listed conjunctively, meaning
34 SEAVIEW TRADING V. CIR

each one is required. The Tax Code is not “silent” on
whether a taxpayer is obliged to comply with the place and
time requirements set forth in the regulations: it plainly
requires compliance with both. See 26 U.S.C. § 6230(i)
(2000); Maj. Op. 13.

2.

There is likewise no support for the majority’s
conclusion that the regulations themselves are “silent” about
the need to comply with both time and place conditions, or
that § 1.6031(a)-1(e) “expressly govern[s]” only the “time
and place to file timely partnership returns.” Maj. Op. 13,
20. Starting with the text, 3 § 1.6031(a)-1(e) reads, in
relevant part:

(e) Procedural requirements—(1) Place for
filing. The return of a partnership must be
filed with the service center prescribed in the
relevant IRS revenue procedure, publication,
form, or instructions to the form . . . .

(2) Time for filing. The return of a
partnership must be filed on or before the
fifteenth day of the fourth month following

3
We construe regulations using the same “toolkit” of interpretation
as we do for statutes. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see
also id. at 2446 (Gorsuch, J., concurring) (“When we interpret a
regulation, we typically (at least when there is no agency say-so) proceed
in the same way we would when interpreting any other written law: We
begin our interpretation of the regulation with its text and, if the text is
unclear, we turn to other canons of interpretation and tie-breaking rules
to resolve the ambiguity.” (internal quotation marks omitted)).
 SEAVIEW TRADING V. CIR 35

the close of the taxable year of the
partnership.

26 C.F.R. § 1.6031(a)-1(e) (2001). Reviewing these
provisions, the majority concludes that they govern only
“timely partnership returns.” Maj. Op. 13. But nothing in
the regulatory text itself suggests it is limited to timely
returns: Both the time and place provisions explicitly apply
to “[t]he return of a partnership.” 26 C.F.R. § 1.6031(a)-
1(e). There is no text limiting the place requirement to
timely returns, or to some other subset of partnership returns;
the only natural reading of the regulation is that it applies to
a “return of a partnership,” regardless of whether the return
is timely or delinquent. Moreover, when the regulation is
read with the mandatory and conjunctive requirements in the
enabling statute, § 6230(i), it is plain that taxpayers must
follow both the time and place requirements.

The majority’s reading of § 1.6031(a)-1(e) is also
perplexing in light of § 1.6031(a)-1(a)(4), which penalizes
partnerships that file untimely returns. See id. (citing
26 U.S.C. §§ 6698(a)(1), 7203 (2000)). The majority’s
conclusion that untimely returns are not governed by the
regulations, would, if true, mean that untimely returns are
not subject to penalties. This reasoning effectively reads
§ 1.6031(a)-1(a)(4) and 26 U.S.C. §§ 6698(a)(1), 7203 out
of existence, creating the absurd result that only timely
returns must comply with the requirement to timely submit
returns, while untimely returns cannot be penalized for being
untimely. See Maj. Op. 13–15. We disfavor interpretations
that render statutes totally ineffectual or give rise to absurd
results. See Ariz. State Bd. for Charter Schs. v. U.S. Dep’t
of Educ., 464 F.3d 1003, 1007–08 (9th Cir. 2006) (observing
that “statutory interpretations which would produce absurd
results are to be avoided” and that in interpreting a statute it
36 SEAVIEW TRADING V. CIR

is for this court to “ascertain—neither to add nor subtract,
neither to delete nor to distort” the text (internal quotation
marks omitted)).

3.

Apart from being unsupported by any legal authority and
starkly inconsistent with the statutory and regulatory text,
the majority’s reasoning in support of its theory is
nonsensical.

As an initial matter, it makes no sense to treat the time
requirements as unlinked to the place requirements. Under
the majority’s reasoning, one might just as easily conclude
that § 1.6031(a)-1(e) governs only returns filed at the correct
place, and that therefore returns submitted to other locations
can be submitted on any timeline because, after all, the
regulations are “silent” about the time requirements of
returns submitted to the incorrect location. Maj. Op. 20.
Such a reading, of course, would be absurd. The point of
§ 6230(i) and § 1.6031(a)-1(e), read together, is that to
properly file a return, a partnership must file it at the
prescribed location by the prescribed date. It would do
taxpayers little good to have a deadline without knowing
where to submit the return, or vice versa. The two provisions
are linked, and, by the plain text of § 6230(i) and
§ 1.6031(a)-1(e), both place and time conditions are
required.

Additionally, to support the proposition that “the
regulations do not appear to govern” a belatedly-filed tax
return, the majority observes that “[n]othing in the text says
that the time and place requirements apply to untimely
returns.” Maj. Op. 13 That is true. But the regulation also
does not say that it applies to timely returns. The regulation
says when and where a partnership must file its returns.
 SEAVIEW TRADING V. CIR 37

26 U.S.C. § 6230(i) (2000); 26 C.F.R. § 1.6031(a)-1(e)
(2001). It does not separate timely and untimely returns into
different categories. And why would it? The very notion of
what an untimely return is derives entirely from the text of
§ 1.6031(a)-1(e). In other words, a return is untimely only
if it fails to comply with the timing requirements of the
regulation.

The majority also reasons that “by definition, if a
taxpayer files a return after April 15, the taxpayer can’t
comply with § 1.6031(a)-1(e) since the regulation specifies
that date as when the return ‘must be filed.’” Maj. Op. 13.
It is unclear what significance the majority places on this
observation. Of course, it is a tautology that when someone
does not comply with the terms of a regulation, she “can’t
comply” with it because, well, she has not complied with it.
Moreover, we do not construe statutes and regulations to
apply only to those who comply with their provisions;
indeed, the law applies most acutely to those who do not
follow it. Nor do we generally excuse compliance with one
provision based on noncompliance with another. And yet,
the upshot of the majority’s holding is that those who timely
file their returns are subject to all the regulations, while those
who do not are shielded from statutory and regulatory
consequences.

To illustrate why the majority’s approach cannot be
correct, consider a hypothetical traffic statute. Suppose that
a jurisdiction enacted a statute that stated:

When operating a motor vehicle, all drivers
must:

(1) Stop at signs marked “STOP.”

(2) Obey posted speed limits.
38 SEAVIEW TRADING V. CIR

Now consider a driver in this hypothetical jurisdiction who,
while driving 80 mph in a 30-mph zone, is pulled over for
running a stop sign. Under the majority’s reasoning, the
driver could defend himself by arguing that the statute “is
silent” about his conduct because it applies only to drivers
obeying the speed limit. “Speeding drivers,” the driver
might argue, “do not appear to be governed” by the statute
because a person can comply with the statute only by
obeying the posted speed limit, and he has not done so. One
would not expect such an argument to get very far with the
traffic court. Yet the majority adopts this argument in the
tax context. 4

4
The majority attempts to distinguish this hypothetical from
§ 1.6031(a)-1(e) by arguing that the hypothetical traffic statute “contains
two independent commands,” which, to the majority, means that
“[v]iolation of either command violates the law,” while § 1.6031(a)-1(e)
“establishes two conditions necessary to comply with the filing
command.” Maj. Op. 15 n.2. The majority seems to overlook that the
punctuation and structure used in the hypothetical traffic statute are
precisely the same as that used in § 1.6031(a)-1(e), which also contains
separate, independent time and place commands separated by periods
and subsection headings. See 26 C.F.R. § 1.6031(a)-1(e). I agree with
the majority’s recognition that to satisfy § 1.6031(a)-1(e), a partnership
must comply with both time and place provisions, Maj. Op. 15 n.2, which
is why Seaview failed to file a return in this case, because it complied
with neither. The same, of course, is true of the hypothetical traffic
statute: to comply with the statute, a driver has to obey speed limits and
stop at stop signs. Once again, the majority reasons that because Seaview
did not obey the regulation, it is not subject to the regulation. Maj. Op.
15 n.2.

The majority also asks “what is a driver supposed to do if a police
officer directs the driver to blow through a STOP sign? Can the driver
be cited for complying with the police officer’s command . . . ?” Maj.
Op. 15 n.2. The hypothetical question of whether instruction from a
police officer might be a defense to traffic liability is, of course, not
 SEAVIEW TRADING V. CIR 39

Simply put, delinquency under one provision of the
regulation does not render another provision inapplicable.
The effect of the majority’s ruling is to excuse delinquent
filers from the necessity of complying with the remainder of
the regulations. Lawbreakers everywhere may rejoice when
they learn that by not complying with one part of a statute or
regulation, the rest of the statute or regulation is rendered
“silent.” The majority opinion is tellingly free of any
citation supporting this sui generis interpretation of the Code
and regulations.

4.

Similarly, the majority’s conclusion that § 1.6031(a)-
1(e)’s place, time, and manner filing requirements apply
only to timely returns is flatly inconsistent with the rest of
§ 1.6031(a)-1’s provisions, which clearly apply to both
timely and delinquent partnership returns.

For example, § 1.6031(a)-1(a)(1) requires the filing of
returns for domestic partnerships, stating that “every
domestic partnership must file a return of partnership income
under section 6031 (partnership return) for each taxable year
on the form prescribed for the partnership return.” 26 C.F.R.
§ 1.6031(a)-1(a)(1) (2001). But under the majority’s
conclusion that delinquent returns are ungoverned by the
IRS regulations, only timely returns would need to be filed
“for each taxable year on the form prescribed.” Id. In other

before us. In any event, as discussed below, the IRS in this case did not
“command” Seaview to file a tax return, but asked for copies as part of
its investigation. There is no indication in the record that Seaview
thought that in complying with this request it was filing a return; indeed,
the record suggests the opposite. As noted, and discussed further below,
the majority seems to covertly apply a form of equitable estoppel, which,
if properly and openly applied, would fail on the facts of this case.
40 SEAVIEW TRADING V. CIR

words, the implication of the majority’s reasoning is that
partnerships that file returns late need not file partnership
returns at all. See United States v. LKAV, 712 F.3d 436, 440
(9th Cir. 2013) (“[S]tatutory interpretations which would
produce absurd results are to be avoided.” (alteration in
original) (internal quotation marks omitted)).

Another subsection of the regulation, § 1.6031(a)-
1(a)(2), prescribes the contents of a partnership return. Id.
§ 1.6031(a)-1(a)(2). But under the majority’s interpretation,
this regulation would only govern the contents of timely-
filed returns. Presumably, for the majority, there are no
regulations that prescribe the contents of a delinquent
partnership return.

And, as previously noted, § 1.6031(a)-1(a)(4) provides
that there are consequences for “[f]ailure to file” a return and
cross references several statutory provisions. Id.
§ 1.6031(a)-1(a)(4) (citing 26 U.S.C. §§ 6229(a), 6231(f),
6698, 7203 (2000)). Under the majority’s construction of
the regulation, none of these consequences would apply to
delinquent returns because the regulation applies only to
timely returns. And yet these consequences self-evidently
are meant to apply to returns that are not filed on time.
Indeed, if the majority is correct that the regulations do not
govern the filing of untimely returns, then some of these
provisions would effectively be read out of the Tax Code.
See, e.g., 26 U.S.C. § 6231(f) (2000) (penalizing
noncompliance with § 6031, which provides, among other
things, that partnerships are required to furnish a return to
certain partners “on or before the day on which the return for
such taxable year was required to be filed,” see id.
§ 6031(b)); id. § 6698(a) (penalizing a partnership that “fails
to file [a] return at the time prescribed therefor”); id. § 7203
 SEAVIEW TRADING V. CIR 41

(penalizing willful failure to pay tax “at the time or times
required by law or regulations”).

The majority attempts to evade these problematic
implications for the structure of the regulations by arguing
that the Tax Code penalizes the failure to file a return at the
wrong time “but doesn’t specify any penalty for filing a
return at the wrong place.” Maj. Op. 12–13 (citing 26 U.S.C.
§§ 6698(a)(1), 7203). But even if § 6698 were read to only
impose monetary penalties for failing to file a timely return,
and if § 7203 were read to criminalize only the willful failure
to file a timely return, the question of where the return must
be timely filed would remain. If a taxpayer mails a return to
NASA or the United States Fish and Wildlife Service, the
IRS need hardly impose a separate monetary or criminal
penalty for filing in the wrong place. And it would not make
any difference if the taxpayer mailed a return to NASA or
Fish and Wildlife by the regulatory deadline. Instead, if the
taxpayer submitted a return to the wrong location, and never
submitted a return to the correct location, the IRS simply
would not regard the return as having been filed. It is a
matter of common sense and an acquaintance with reality to
recognize that when a statute penalizes failure to timely file,
it encompasses failing to file at all by filing in the wrong
place.

5.

The majority also attempts to bolster its position by
pointing out that “no IRS regulation prohibits the filing of
untimely returns with a requesting IRS official.” Maj.
Op. 13. But the regulation need not list the infinite number
of wrong ways to file a return. The regulations also do not
prohibit the filing of a return by sending it in a letter
personally addressed to the President of the United States.
But I doubt we would have much sympathy for a taxpayer
42 SEAVIEW TRADING V. CIR

who followed such a method and complained that the IRS
did not treat his return as filed.

The regulations prescribe when and where a taxpayer
shall file a return, and Congress has made compliance with
those requirements mandatory. 26 U.S.C. § 6230(i) (2000);
26 C.F.R. § 1.6031(a)-1(e) (2001). By necessary negative
implication, all other times and places of filing are not in
compliance. See Silvers v. Sony Pictures Ent., Inc., 402 F.3d
881, 885 (9th Cir. 2005) (“The doctrine of expressio unius
est exclusio alterius as applied to statutory interpretation
creates a presumption that when a statute designates certain
persons, things, or manners of operation, all omissions
should be understood as exclusions.” (internal quotation
marks omitted)).

Similarly, the majority’s contention that “there is more
than one place for a partnership to properly file a return”
hurts, rather than helps, its theory. Maj. Op. 13 (citing
26 U.S.C. § 6091(b)(4); 26 C.F.R. § 1.6091-2(d)(1)). The
majority points to the regulation that provides the places for
filing returns by various taxpayers, such as individuals,
estates, trusts, and corporations. See 26 C.F.R. § 1.6091-
2(a)–(b). Notably, that regulation also provides that
“whenever instructions applicable to income tax returns
provide that the returns be filed with a service center, the
returns must be so filed in accordance with the instructions.”
Id. § 1.6091-2(c). The regulation provides that “persons
other than corporations” and “corporations” may file returns
by hand carrying them to the district director of the internal
revenue district in which the taxpayer resides. Id. § 1.6091-
2(d).

But even assuming Seaview could have hand-carried its
return to an IRS office, instead of or in addition to mailing
its return to the Ogden service center, see 26 U.S.C.
 SEAVIEW TRADING V. CIR 43

§ 6091(b)(4); 26 C.F.R. § 1.6091–2(d)(1), Seaview nowhere
argues that it did so or that it attempted to do so. And
although the Tax Code and regulations enumerate specific
locations and methods for filing a return, that does not
suggest that an infinite set of other locations and methods
(such as mailing a copy to an IRS agent) might be
permissible; it suggests the opposite. See Silvers, 402 F.3d
at 885; see also Scalia & Garner, supra, at 107–08 (noting
that “the principle that specification of the one implies
exclusion of the other validly describes how people express
themselves and understand verbal expression” and that the
“more specific the enumeration, the greater the force of” this
principle). Congress has permitted the Secretary of the
Treasury to create regulations providing for the place, time,
and manner of filing tax returns, and made it mandatory for
the taxpayer to comply with those regulations. By necessary
negative implication, other places, times, and manners are
improper.

6.

The final reason to doubt the majority’s conclusion that
the Tax Code and regulations are silent regarding delinquent
returns is the sheer implausibility of that position. Late-filed
tax returns are far from an uncommon occurrence. 5 It is

5
As Seaview acknowledges, “[d]elinquent returns are
commonplace.” Statistics available on IRS’s public website show that
the IRS assesses billions of dollars per year from delinquent returns. See
IRS, SOI Tax Stats - Delinquent Collection Activities - IRS Data Book
Table 25, https://www.irs.gov/statistics/soi-tax-stats-delinquent-
collection-activities-irs-data-book-table-25 (last visited May 2, 2022);
see also Robert E. McKenzie, 7 Million Taxpayers Fail to File Their
Income Taxes, Forbes (Aug. 27, 2014, 2:37 AM),
https://www.forbes.com/sites/irswatch/2014/08/27/7-million-taxpayers-
fail-to-file-their-income-taxes/?sh=78c4921a706f.
44 SEAVIEW TRADING V. CIR

therefore hard to believe that § 6230(i) or § 1.6031(a)-1(e)
are not meant to apply to delinquent returns, and that
Congress and the Secretary of the Treasury simply
overlooked this all too common and predictable occurrence.
If the statute and regulations were truly silent on the correct
procedures for filing delinquent returns, every year from
April 16 on would be a tax-filing free-for-all. Tellingly, the
majority opinion is unique in reaching this conclusion.

* * *

The majority’s reading of § 6230(i) and § 1.6031(a)-1(e)
is plainly incorrect. The remainder of the majority’s
reasoning is built on this foundation, as the majority admits,
Maj. Op. 13, 20. so the majority opinion fails for this reason
alone. Nonetheless, I address why the remainder of the
majority’s reasoning fails even if this foundational flaw is
overlooked.

B.

1.

Once the majority determines that 26 C.F.R.
§ 1.6031(a)-1(e) does not govern untimely returns, it frees
itself to supply its own requirements for filing delinquent
partnership returns based on the “ordinary meaning” of the
term “file.” Maj. Op. 14–15. Like the faulty statutory and
regulatory interpretation on which it is based, this conclusion
is riddled with errors.

First, it bears repeating that there is simply no cause for
this court to look to the ordinary meaning of the term “file”
when, as set forth above, the statute and regulations already
clearly set forth the filing requirements for partnership
returns.
 SEAVIEW TRADING V. CIR 45

Second, even if there were some kind of legislative or
regulatory gap in this area, it is not this (or any) court’s role
to supply an absent provision or create an exception not
provided by Congress. “It is a fundamental principle of
statutory interpretation that absent provision[s] cannot be
supplied by the courts.” Little Sisters of the Poor Saints
Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381
(2020) (alteration in original) (internal quotation marks
omitted); see also Scalia & Garner, supra, at 93 (“It is not
[the judge’s] function or within his power to enlarge or
improve or change the law. Nor should the judge elaborate
unprovided-for exceptions to a text . . . .” (footnote and
internal quotation marks omitted)). The majority runs afoul
of this fundamental principle by finding a regulatory gap of
its own making and then filling it with a wholly invented,
court-created exception to ordinary filing rules for
delinquent partnership returns. Maj. Op. 10, 15, 21.
Regardless of the merits of its new rule, the majority violates
basic legal principles in creating it.

Third, the majority’s new rule for delinquent returns
contradicts the language from the very authorities it cites in
defining the word “file.” For example, in United States v.
Lombardo, 241 U.S. 73 (1916), the Court held that a “paper
is filed when it is delivered to the proper official and by him
received and filed.” 241 U.S. at 76 (emphases added). This
is precisely the rule that Seaview has indisputably failed to
satisfy. Its return was never delivered to, or received by, the
proper official. Seaview sent copies of its return to an IRS
revenue agent and IRS counsel, and—undisputedly—not to
the Ogden service center. This means that the returns were
not delivered to the “proper official” and were not “by [that
official] received.” Lombardo, 241 U.S. at 76; see also, e.g.,
Smyth v. Comm’r, 113 T.C.M. (CCH) 1132, at *3 (2017)
(delivery to IRS counsel is not a filing); Friedmann v.
46 SEAVIEW TRADING V. CIR

Comm’r, 82 T.C.M. (CCH) 381, at *6–7 (2001) (delivery to
a revenue agent is not a filing).

Other authorities relied upon by the majority similarly
include as part of their definitions of “file” that the return
must be “delivered to, received and filed by the proper
official.” Heard v. Comm’r, 269 F.2d 911, 913 (3d Cir.
1959) (emphasis added); see also Maj. Op. 14–15 (citing
File, Black’s Law Dictionary (5th ed. 1979) for proposition
that to file is “[t]o deliver an instrument . . . to the proper
officer” (alterations in original)). As explained later, the
majority’s attempt to sidestep this difficulty by redefining
what counts as a proper official, see Maj. Op. 10–10, 21 n.4,
is unpersuasive in light of the large body of case law
rejecting revenue agents or IRS counsel as proper officials,
among other reasons.

Similarly, the majority’s reliance on United States v.
Hanson, 2 F.3d 942 (9th Cir. 1993), does little to support its
ordinary meaning definition. Maj. Op. 15 In Hanson, the
defendant was criminally prosecuted for filing a false tax
return under 26 U.S.C. § 7206(1). Id. at 944. The defendant
argued on appeal that the allegedly false forms “were not
‘filed’ because they were never fully processed by the IRS.”
Id. at 946. We rejected this argument, observing that
“Hanson personally mailed the forms and . . . the IRS
received them.” Id. We held that a “return is ‘filed’ at the
time it is delivered to the IRS.” Id.

At first blush, Hanson’s terse definition of “file” might
appear to help the majority’s argument. After all, Seaview
“delivered” its return “to the IRS” when it sent copies of its
returns in 2005 and 2007. Id. But in Hanson, the court was
not asked to decide whether a return sent to the wrong
location and not processed as a return was “filed.” The
defendant argued simply that because the IRS “never fully
 SEAVIEW TRADING V. CIR 47

processed” his returns, he did not file them and could not be
criminally liable for filing a false return. Id. The court did
not explain what was meant by “never fully processed,” and,
unlike here, the government did not argue that the returns
were not sent to the correct location. See id. Indeed, the
facts suggested that the defendant submitted his fraudulent
returns to the correct location. See id. at 944–45. Thus,
Hanson cannot reasonably be read to suggest that a taxpayer
may properly file a return other than by sending it to the
correct location.

Furthermore, given the criminal nature of the charge
against the defendant in Hanson, whether the returns were
processed was not particularly relevant, because the issue
was whether the defendant “[w]illfully ma[de] and
subscribe[d] any return . . . under the penalties of perjury . . .
which he d[id] not believe to be true and correct as to every
material matter.” 26 U.S.C. § 7206(1) (1988).
Unsurprisingly, in a criminal prosecution for such an
offense, the emphasis was on the defendant’s conduct and
state of mind, rather than on whether the IRS “fully
processed” his returns, and the court rejected the defendant’s
argument without extensive analysis. See Hanson, 2 F.3d
at 946. 6

6
Subsequent interpretations of Hanson raise further doubts about
the application of its definition of “file” to the facts of this appeal. See
United States v. Boitano, 796 F.3d 1160, 1163–64 (9th Cir. 2015). In
Boitano, the defendant had “handed” delinquent tax returns to an IRS
enforcement agent, the IRS agent never sent the returns “to the IRS
service center for processing,” and, after the information in those returns
was determined to be fraudulent, the defendant was charged with
violating § 7206(1). Id. at 1161–62. Before the district court, the
government argued that the defendant had filed the returns by handing
them to the agent. Id. at 1162. But, on appeal, the government took the
48 SEAVIEW TRADING V. CIR

2.

Even if the Tax Code and regulations did not foreclose
the majority’s reliance on the “ordinary meaning” of “file”
(which they do), and even if it were proper for us to devise
our own filing regulation for delinquent returns (which it is
not), and even if the majority’s ordinary meaning definition
were supported by legal authority (which it is not), the
majority’s ordinary meaning analysis would be problematic
for another reason: the sweep of its implications.

The majority holds:

that when (1) an IRS official authorized to
obtain and receive delinquent returns informs
a partnership that a tax return is missing and
requests that tax return, (2) the partnership
responds by giving the IRS official the tax
return in the manner requested, and (3) the
IRS official receives the tax return, the
partnership has “filed” a tax return for
§ 6229(a) purposes.

position that “there is a single definition of filing that applies in both the
civil and criminal context, and that the record does not support that the
returns here were filed.” Id. at 1163 (internal quotation marks omitted).
The government repudiated its position in the district court that the
returns were “filed” when handed to the agent. Id. Given the
government’s concession, we did not have to decide the correct meaning
of “file” in Boitano. Id. at 1164. Nonetheless, we accepted the
government’s concession that handing a return to a revenue agent did not
constitute a filing. The implication is that giving a return to someone
other than the proper official, who in turn does not send “the returns to
the IRS service center for processing,” does not count as “filing” the
return. Id. at 1161, 1163–64.
 SEAVIEW TRADING V. CIR 49

Maj. Op. 10–10. The implication of the majority’s reasoning
is that this three-part test is just one of a broader set of valid
ways to file delinquent returns. To the majority, there are
any number of places to file a delinquent return as long as it
is “delivered to a proper IRS official and the official received
the return.” Maj. Op. 15. This holding is untethered from
the statutory and regulatory text and does little to guide
taxpayers, the IRS, and the Tax Court. See Maj. Op. 10–10,
15–15.

To be sure, the majority appears to narrow its holding by
limiting its application to instances where an IRS employee
requests a delinquent return from a partnership 7 (which
could conceivably happen in every case in which a
partnership fails to file a return), and where the partnership
sends the return to an IRS employee “authorized” to accept
the returns. Maj. Op. 10–10, 15–15, 19. But the majority
does not define “an authorized” employee, and instead
improperly cites a non-precedential IRS internal
memorandum to suggest that employees at certain pay
grades may be authorized to process delinquent returns.
Maj. Op. 21 n.4 (citing IRS, National Office Advice No.
199933039 (June 25, 1999)). The Tax Code explicitly
provides that such internal memoranda “may not be used or

7
Although the majority uses the term partnership, thereby
seemingly limiting its holding to partnership returns governed by
26 U.S.C. § 6229 (2000), the majority does not explain why the
sweeping rule it devises may or may not extend to individual tax returns
governed by 26 U.S.C. § 6501’s statute of limitations, which is similar
in material respects to that of § 6229. Compare 26 U.S.C. § 6501(a), (c),
with 26 U.S.C. § 6229(a), (c) (2000). Elsewhere the majority indicates
that the analysis of individual and partnership returns is the same. Maj.
Op. 18 n.3. Presumably the majority is reassured that this Pandora’s box
will be for taxpayers, the IRS, and the Tax Court to address in the first
instance.
50 SEAVIEW TRADING V. CIR

cited as precedent,” 26 U.S.C. § 6110(k)(3), and, as the
majority elsewhere acknowledges, such materials lack the
force of law. See Fargo, 447 F.3d at 713; Maj. Op. 16.
Nonetheless, the majority asserts that in this memorandum
the IRS “held” that revenue officers at certain pay grades
(GS-9, GS-11, and GS-12) may secure delinquent returns.
Maj. Op. 21 n.4.

Even if we assume this memorandum applied in 2005
and 2007, and that it had any precedential value, it is
irrelevant to the issues before us now. The memorandum
provides guidance to IRS district counsel about procedures
applicable to individuals filing returns by hand carrying
them “to the District Director of the internal revenue district
in which they live.” IRS, National Office Advice No.
199933039, at 2–3 (June 25, 1999) (explaining that the Tax
Code and regulations allow “a person other than a
corporation” to file their return by hand carrying it to the
district director, or by mailing it to the appropriate service
center (first citing 26 U.S.C. § 6091(b)(1)(A), (b)(4); then
citing 26 C.F.R. § 1.6091-2(a)(1), (c), (d)(1))).

The memorandum then states that neither the Tax Code
nor the regulations “specifically provide for filing returns
directly with revenue officers.” Id. at 3. But it explains that
delegations of authority (in that case, a delegation of the
district director’s authority to receive hand-carried returns)
“may take many forms, including functional statements in
position descriptions.” Id. The memorandum reviews the
position descriptions for revenue agents at pay scales GS-9,
GS-11, and GS-12, and concludes that these descriptions are
consistent with the revenue agents receiving hand-carried
returns “as the revenue officers are acting on behalf of, and
under the authority of, the District Director.” Id.
 SEAVIEW TRADING V. CIR 51

Seaview nowhere argues that it hand-carried its return to
the district director in the revenue district of its residence as
an alternative, or in addition, to mailing its return to the
appropriate service center, or that it attempted to do so.
Thus, the majority’s reliance on this internal memorandum
is misplaced, and its supposed limitations are no limitation
at all. Instead of following the clear weight of legal authority
in this area, the majority creates a morass for courts to wade
through as parties litigate whether an IRS employee was
“authorized to obtain and receive” a return. Maj. Op. 10.
And, of course, this holding will apply only in the Ninth
Circuit, undermining the “equal and certain administration”
of our nationwide tax system and “leading to uncertainty and
obvious forum shopping opportunities.” Ai v. United States,
809 F.3d 503, 507 (9th Cir. 2015) (internal quotation marks
omitted).

* * *

The statute and regulations leave no space for the
majority to devise its own definition of “file” for delinquent
returns. Even if there were such an opportunity, it is not our
role to supply absent provisions or create exceptions not
mandated by Congress. And even if we could turn to an
ordinary meaning definition of “file,” the definition provided
by the majority is inconsistent with the authorities on which
it relies and will create a host of problems for taxpayers, the
IRS, and the Tax Court when dealing with tax returns in our
circuit.

C.

Logic and principles of statutory interpretation suffice to
foreclose the majority’s approach to § 6230(i) and
§ 1.6031(a)-1(e). But if there remains any doubt about the
correctness of the majority’s interpretation, the Supreme
52 SEAVIEW TRADING V. CIR

Court’s decision in Badaracco slams the door firmly shut.
464 U.S. 386. In Badaracco, the Court was asked to
determine the applicability of 26 U.S.C. § 6501, which
applies a three-year statute of limitations, like § 6229(a),
unless the taxpayer fails to file a return or files “a false or
fraudulent return with the intent to evade tax.” Id. at 388.
Compare 26 U.S.C. § 6501(a), (c), with 26 U.S.C. § 6229(a),
(c) (2000). The issue in Badaracco was whether the three-
year limitations period to assess taxes runs when the
“taxpayer files a false or fraudulent return but later files a
nonfraudulent amended return.” 464 U.S. at 388. The Court
rejected the taxpayer’s argument and held that the IRS was
permitted to assess “‘at any time’ the tax for a year in which
the taxpayer has filed ‘a false or fraudulent return,’ despite
any subsequent disclosure the taxpayer might make.” Id. at
396.

In reaching that conclusion, the Court—unlike the
majority here—rejected “a nonliteral construction of the
statute based on considerations of policy and practicality.”
Id. at 396–401. Even more significantly, however, the Court
reaffirmed that “[s]tatutes of limitation sought to be applied
to bar rights of the Government, must receive a strict
construction in favor of the Government.” Id. at 391
(quoting E.I. Dupont de Nemours & Co. v. Davis, 264 U.S.
456, 462 (1924)). This rule of statutory construction applies
with particular force in the tax context: “[L]imitations
statutes barring the collection of taxes otherwise due and
unpaid are strictly construed in favor of the Government.”
Id. at 392 (quoting Lucia v. United States, 474 F.2d 565, 570
(5th Cir. 1973)).

The majority hardly addresses this part of Badaracco’s
holding, despite citing Badaracco later in its opinion for a
different proposition. Maj. Op. 22 & [22] n.6. At the risk of
 SEAVIEW TRADING V. CIR 53

stating the obvious, we are bound by Badaracco. See MK
Hillside Partners v. Comm’r, 826 F.3d 1200, 1206 (9th Cir.
2016) (“[W]e are bound not only by the holdings of
[Supreme Court] decisions but also by their mode of
analysis.” (second alteration in original) (internal quotation
marks omitted)); see also Hart v. Massanari, 266 F.3d 1155,
1171 (9th Cir. 2001) (“Obviously, binding authority is very
powerful medicine. A decision of the Supreme Court will
control that corner of the law unless and until the Supreme
Court itself overrules or modifies it. Judges of the inferior
courts may voice their criticisms, but follow it they must.”). 8

8
The majority attempts to distinguish Badaracco in a footnote, Maj.
Op. 22 n.6, but it is hard to read its treatment of this precedent as anything
other than a departure from the Supreme Court’s “mode of analysis.”
MK Hillside Partners, 826 F.3d at 1206. It is true that Badaracco dealt
with fraudulent returns under § 6501(c)(1), but the majority overlooks
that the relevant provisions of §§ 6501 and 6229 are nearly identical,
including in removing any statute of limitations when a fraudulent return
is filed or when a taxpayer fails to file a return. Compare 26 U.S.C.
§ 6501(c), with 26 U.S.C. § 6229(c) (2000). The majority denies that
Badaracco’s statement of what was then (and is now) well-settled
authority that statutes of limitation must be strictly construed in favor of
the government, particularly in the tax context, was in fact its “actual
holding.” But we have recognized this holding of Badaracco many
times. See, e.g., California ex rel. Cal. Dep’t of Toxic Control v. Neville
Chem. Co., 358 F.3d 661, 666 (9th Cir. 2004) (“[W]e have been specially
instructed by the Supreme Court to construe limitations periods in favor
of the government.”); Tosello v. United States, 210 F.3d 1125, 1127 (9th
Cir. 2000) (“[T]he applicable statute of limitations . . . must be construed
strictly in favor of the government.”); In re West, 5 F.3d 423, 426 (9th
Cir. 1993) (observing this holding in the context of tax collection in
bankruptcy); United States v. Dos Cabezas Corp., 995 F.2d 1486, 1489
(9th Cir. 1993) (“[T]he court strictly construes the statute [of limitations]
in favor of the government.”); FDIC v. Former Officers & Dirs. of
Metro. Bank, 884 F.2d 1304, 1309 (9th Cir. 1989) (“To the extent that a
statute is ambiguous in assigning a limitations period for a claim, we will
interpret it in a light most favorable to the government.”). The majority
54 SEAVIEW TRADING V. CIR

If we follow Badaracco, as we are required to do, and
strictly construe the statute of limitations in the
government’s favor, then it simply makes no sense to
provide a different and more permissive tax filing regime for
taxpayers who file their returns late. Ultimately, apart from
a feeble attempt to distinguish Badaracco’s “actual”
holding, Maj. Op. 22 n.6, the majority has no answer for how
its idiosyncratic interpretation of the statute and regulations
in this case can be reconciled with our obligation to “strictly
construe[]” § 6229’s limitation period “in favor of the
government.” Badaracco, 464 U.S. at 392. See also Pac.
Coast Steel Co. v. McLaughlin, 61 F.2d 73, 75 (9th Cir.
1932) (“Statutes of limitation barring the collection of taxes
that are justly due and unpaid must receive a strict
construction in favor of the government, and limitation in
such cases will not be presumed, in the absence of clear
Congressional action.”), aff’d, 288 U.S. 426 (1933); Parrott
v. McLaughlin, 67 F.2d 397, 398–99 (9th Cir. 1933)
(observing that, unlike statutes levying taxes, which are
construed against the government, statutes of limitations
“applied to bar rights of the government . . . must receive a
strict construction in favor of the government”).

Moreover, in cases considering similar issues, courts
have uniformly failed to excuse delinquent returns from the
filing requirements to which all taxpayers are subject. See,

later seems to recognize that Badaracco requires us to strictly construe
§ 6229’s statute of limitations, but argues that does not mean “we must
give the government carte blanche to apply § 6229 however and
whenever it wants.” Maj. Op. 22 n.6. The majority does not explain
how faithfully applying the statute, regulations, and Supreme Court
precedent amounts to allowing the government to apply the statute of
limitations however and whenever it wants. The majority seems to think
we have carte blanche to make our own rules that flagrantly contravene
the statute, regulations, and Supreme Court authority. We do not.
 SEAVIEW TRADING V. CIR 55

e.g., Allnutt, 523 F.3d at 407–10, 412–13 (applying the
meticulous compliance standard to filing of delinquent
returns); Friedmann, 82 T.C.M. (CCH) 381, at *2, 6–7
(same); Green v. Comm’r, 65 T.C.M. (CCH) 2347, at *7
(1993) (“[G]iving a delinquent return to an IRS agent does
not constitute filing.” (emphasis added)). Tellingly, the
majority does not cite any legal authority supporting its
reasoning that § 6230(i) and § 1.6031(a)-1(e) by their terms
do not apply to delinquent returns, nor does it reckon with
the ample authorities that foreclose its interpretation. See
Maj. Op. 13.

II.

With no support in the text of the Tax Code or IRS
regulations for its desired outcome, the majority relies
largely on internal IRS guidance which, the majority
acknowledges, lacks the force of law and does not confer
rights on taxpayers. 9 See Fargo, 447 F.3d at 713; Maj.
Op. 16. Despite this frank and correct admission, the
majority devotes a substantial portion of its opinion to
analyzing this guidance. Maj. Op. 16–19. I would sooner
adhere to the law. See Disabled Am. Veterans v. Comm’r,
942 F.2d 309, 315 n.5 (6th Cir. 1991) (stating that IRS
9
Specifically, the majority cites three documents: (1) IRS, Chief
Counsel Advice No. 199933039 (June 25, 1999) (addressing whether a
district director’s authority to accept certain hand-carried returns can be
delegated to revenue agents); (2) IRS Internal Revenue Manual, ch. 4.4
(2005) (listing procedures for processing delinquent returns and
substitute for returns, including sending the return package “to the
appropriate campus”); and (3) IRS Policy Statement 5-133 (2006)
(stating that absent indications of fraud, “[a]ll delinquent returns
submitted by a taxpayer, whether upon his/her own initiative or at the
request of a Service representative, will be accepted,” but containing no
information about how or where such returns are accepted or processed).
Maj. Op. 16–19.
56 SEAVIEW TRADING V. CIR

counsel memoranda “are of no precedential value, and we
are not prepared to rest a specific interpretation of a law
passed by Congress on what may be nothing more than the
general considerations of [IRS] employees”); see also 26
U.S.C. § 6110(k)(3) (providing that IRS internal memoranda
“may not be used or cited as precedent”).

But even if we were to accept that IRS internal guidance
could affect the outcome in this case, the guidance would
actually weigh against finding that Seaview’s return was
filed. That is because, as the majority asserts, this guidance
instructs IRS agents to send the delinquent return package to
the appropriate service center for processing. 10 Internal
Revenue Manual 4.4.9.7.3 (2005); Maj. Op. 17. In other
words, the guidance itself is consistent with the well-
established legal proposition that a return must be received
at the appropriate service center to be considered filed. In
this case, of course, there is no evidence that the return ever
was sent to the Ogden service center.

Therefore, at most, the IRS in this case did not comply
with its own internal guidance. The majority cites no legal
authority whatsoever for the proposition that the IRS’s
failure to adhere to this guidance has any bearing on the
merits of Seaview’s appeal. Instead, the majority’s outcome
rests on what it sees as the IRS’s “troubling” inconsistency,
concluding that “the IRS views the law one way as an
internal matter and another way for litigation advantage,”
which the majority believes is a “nonsensical position” that
is inconsistent with “common sense.” Maj. Op. 6–7, 16, 19.

10
See also IRS, Chief Counsel Advice No. 199933039 (June 25,
1999) (stating that “whenever instructions applicable to income tax
returns provide that the returns be filed with a service center, the returns
must be so filed in accordance with the instructions”).
 SEAVIEW TRADING V. CIR 57

In other words, as noted, the majority takes issue with the
IRS’s perceived unfairness to Seaview.

It should go without saying that our views of the equities
of the parties’ conduct in this case do not control the
outcome. Instead, this court is guided by the decision of
Congress to empower the Secretary of the Treasury to
promulgate regulations with which taxpayers must comply
to file their returns. 26 U.S.C. § 6230(i) (2000); see
Anderson v. Wilson, 289 U.S. 20, 27 (1933) (Cardozo, J.)
(“We do not pause to consider whether a statute differently
conceived and framed would yield results more consonant
with fairness and reason. We take the statute as we find it.”).
To the extent that the majority thinks the operation of the
Tax Code and regulations results in an unfair outcome, it is
not within our purview to change the law to suit our own
preferences. Badaracco, 464 U.S. at 398 (“Courts are not
authorized to rewrite a statute because they might deem its
effects susceptible of improvement.”).

We must also reject any suggestion that the government
should be equitably estopped from asserting that Seaview
did not file its 2001 partnership return and, thus, that the
statute of limitations for assessing taxes did not apply.
Granted, the majority does not explicitly argue that the
government should be estopped from adjusting Seaview’s
return. But its objection to simply holding Seaview to
compliance with the filing regulations—because IRS
employees requested and received a copy of the return but
did not forward it to the service center for processing—
suggests that the majority is impliedly applying a form of
estoppel. See generally Maj. Op. 6, 16–19.

“The traditional elements of an equitable estoppel claim
include (1) the party to be estopped must know the facts;
(2) he must intend that his conduct shall be acted on or must
58 SEAVIEW TRADING V. CIR

so act that the party asserting the estoppel has a right to
believe it is so intended; (3) the latter must be ignorant of the
true facts; and (4) he must rely on the former’s conduct to
his injury.” Baccei v. United States, 632 F.3d 1140, 1147
(9th Cir. 2011) (internal quotation marks omitted). Seaview
does not argue that it was aware of the IRS’s internal
guidance, much less that it relied upon these memoranda and
manual sections. It thus cannot establish the traditional
elements of estoppel.

Moreover, while “the Supreme Court has never
categorically foreclosed estoppel against the government
. . . , it has ‘reversed every finding of estoppel that [it has]
reviewed.’” Indus. Customers of Nw. Utils. v. Bonneville
Power, 767 F.3d 912, 927 (9th Cir. 2014) (second alteration
in original) (quoting Off. of Pers. Mgmt. v. Richmond,
496 U.S. 414, 422 (1990)). And even if estoppel applies to
the government, a party claiming estoppel in this context
must show, in addition to the traditional elements, that
“(1) the government engaged in affirmative misconduct
going beyond mere negligence; (2) the government’s
wrongful acts will cause a serious injustice; and (3) the
public’s interest will not suffer undue damage by imposition
of estoppel.” Baccei, 632 F.3d at 1147.

Seaview cannot establish that the IRS engaged in
affirmative misconduct. “Affirmative misconduct on the
part of the government requires an affirmative
misrepresentation or affirmative concealment of a material
fact . . . .” Id. Seaview does not contend that the IRS misled
it through misrepresentations or concealed material facts.

In any event, even the majority’s characterization of the
record in this case misses the mark. For the record evinces
no intent on Seaview’s part to file its returns as delinquent
returns in 2005 or 2007. Instead, the record demonstrates
 SEAVIEW TRADING V. CIR 59

that in 2005, the IRS informed Seaview that it had “not
received [its] federal income tax return(s)” for the 2001 tax
year. Then, consistent with its position that the return had
been filed in 2002, Seaview faxed the IRS “the 2001 tax
return for Seaview Trading LLC as well as the certified
mailing.” Two years later, Seaview mailed “a copy of the
Seaview Trading, LLC’s retained copy of its 2001 Form
1065” to IRS counsel.

Of note, nothing in these communications suggests that
Seaview wanted the IRS to treat the fax or mailing as a filing.
Seaview did not inquire about what it should do to ensure
that the return was treated as filed, nor did it ask that the IRS
forward the return to the Ogden service center, even though
it knew that was the correct location for filing. Instead,
Seaview, a wealthy and sophisticated taxpayer advised by
accountants and tax lawyers at a national law firm,
consistently maintained that its return had been filed years
earlier.

This strategy, had it succeeded, could have exonerated
Seaview from any tax liability arising from the adjustment
of the 2001 partnership return because the statute of
limitations would have run before the IRS even informed
Seaview that it had never received the return. Thus,
Seaview’s consistent position of a July 2002 filing,
abandoned only years later after litigating this matter in the
Tax Court, could have prevented any adjustment or penalties
by the time the IRS requested information on the return in
July 2005. See 26 U.S.C. § 6229(a) (2000). It should
therefore come as no surprise that the record demonstrates
no intention whatsoever that the 2005 and 2007 submissions
be treated as filings. Seaview’s position was that the statute
of limitations had already run by that point. Filing the
returns in 2005 or 2007 might have risked late-filing
60 SEAVIEW TRADING V. CIR

penalties and starting the statute of limitations at that time,
rather than in 2002. See 26 C.F.R. § 1.6031(a)-1(a)(4)
(2001).

The umbrage the majority seems to take with the IRS’s
position is therefore misplaced. See Maj. Op. 6–7, 19.
Assuming for the sake of argument that it is appropriate to
consider questions regarding the parties’ intent, see, e.g.,
Allnutt, 523 F.3d at 413 n.5, the record does not support the
notion that Seaview wanted to file its 2001 return in 2005 or
2007. It thus makes no sense to fault the IRS for not taking
any steps to treat the copies of Seaview’s return as anything
other than retained copies of previously filed returns.

This might be a different case if Seaview had requested
the IRS to treat the submissions as filings—including as
protective filings, which the government asserts would be a
valid way to ensure the returns were filed in 2005 or 2007
while not abandoning the position that they had properly
been filed in 2002. And under Tax Court precedent, as
discussed more fully below, had the return been forwarded
to the Ogden service center and processed there, then the
statute of limitations would have run from that date. Winnett
v. Comm’r, 96 T.C. 802, 807–08 (1991). But these facts are
not present here. 11

11
Seaview disputes that it could have submitted a “protective
filing,” arguing that such a filing “appears to be something the IRS
invented just for this case.” But in other contexts, the IRS has recognized
“protective claims” as a way to preserve a taxpayer’s right to a tax refund
“when the taxpayer’s right to the refund is contingent on future events
and may not be determinable until after the statute of limitations
expires.” Office of Chief Counsel, IRS, Memorandum: Protective
Claims, at 3 (Aug. 5, 2005) (collecting cases). The record also reflects
that Seaview’s tax matters partner, AGK Investments, LLC, filed two
 SEAVIEW TRADING V. CIR 61

Fundamentally, however, such considerations do not
control the outcome of this case. This matter is instead
controlled by the Tax Code and IRS regulations, as discussed
above, and binding and persuasive case law, which I address
next.

III.

A more in-depth review of the case law in this area
further demonstrates the many flaws in the majority’s
approach. But before looking to the legion of on-point cases
regarding filing requirements and the statute of limitations,
it is worth considering how we are required to approach
these precedents.

A.

To begin with, we have long recognized that, although
our review of Tax Court decisions is de novo, we “generally
defer[]” to Tax Court decisions, “and will not disagree with
that court unless an unmistakable question of law so
mandates.” First Charter Fin. Corp. v. United States,
669 F.2d 1342, 1345 (9th Cir. 1982); see also Gragg v.
United States, 831 F.3d 1189, 1192 (9th Cir. 2016)
(recognizing that even though Tax Court opinions are merely
persuasive authority, the “Tax Court is informed by
experience and kept current with tax evolution and needs by
the volume and variety of its work,” and “uniform
administration would be promoted by conforming to [its
decisions] when possible” (alteration in original) (quoting
Dobson v. Comm’r, 320 U.S. 489, 502 (1943))); Vukasovich,
Inc. v. Comm’r, 790 F.2d 1409, 1413 (9th Cir. 1986) (“Tax

distinct “protective petition[s]” when this case was litigated in the Tax
Court.
62 SEAVIEW TRADING V. CIR

Court decisions should receive deference in the interest of a
uniform body of national tax law. This is especially so when
‘it is more important that the applicable rule of law be
settled than that it be settled right.’” (emphasis added)
(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
406 (1932) (Brandeis, J., dissenting))).

Furthermore, “[a]bsent a strong reason to do so, we will
not create a direct conflict with other circuits.” United States
v. Cuevas-Lopez, 934 F.3d 1056, 1067 (9th Cir. 2019)
(internal quotation marks omitted). This rule is even
stronger in the tax context: “Uniformity among the circuits
is especially important in tax cases to ensure equal and
certain administration of the tax system. We would therefore
hesitate to reject the view of another circuit.” First Charter
Fin. Corp., 669 F.2d at 1345; see also Ai, 809 F.3d at 507
(“We have recognized . . . that [u]niformity among Circuits
is especially important in tax cases to ensure equal and
certain administration of the tax system. That is particularly
true where, as here, a circuit split would create two mutually
exclusive rules . . . leading to uncertainty and obvious forum
shopping opportunities.” (second alteration in original)
(internal quotation marks omitted)).

Keeping these principles in mind when examining the
case law in this area will further demonstrate that, whatever
the merits of the majority’s novel statutory interpretation in
this case, its holding cannot stand. For the majority ignores
or erroneously brushes aside Supreme Court and Tax Court
precedent. It also needlessly creates a circuit split even
though the proper method of filing taxes is of nationwide
concern and self-evidently is a topic on which “it is more
important that the applicable rule of law be settled than that
it be settled right.” Vukasovich, 790 F.2d at 1413 (internal
 SEAVIEW TRADING V. CIR 63

quotation marks omitted). These considerations alone are
enough to render the majority opinion erroneous.

B.

1.

Starting with Supreme Court precedent, we are bound to
apply the rule that Seaview must show “meticulous
compliance” with filing requirements to benefit from the
statute of limitations. Lucas, 281 U.S. at 249; see also
Comm’r v. Lane-Wells Co., 321 U.S. 219, 223 (1944)
(“Congress has given discretion to the Commissioner to
prescribe by regulation forms of returns and has made it the
duty of the of the taxpayer to comply.”); Bachner v. Comm’r,
81 F.3d 1274, 1280 (3d Cir. 1996) (“The Supreme Court
repeatedly has declared that tax returns must comply strictly
with prescribed requirements in order to trigger applicable
limitations periods.”).

As already discussed at length, the majority seeks to
avoid this rule by concluding that the filing of delinquent
returns is ungoverned by existing law. Even if that were true
(which it is not), the majority fails to explain how its relaxed
filing requirements—for taxpayers who pay their taxes
late—is consistent with the binding rule that a taxpayer must
demonstrate “meticulous compliance” to benefit from the
statute of limitations. Lucas, 281 U.S. at 249. Rather than
upholding the need for meticulous compliance, the
majority’s holding encourages delinquency—i.e., the
opposite of meticulous compliance—by making it easier for
delinquent taxpayers to secure the statute of limitations. The
law does not ordinarily reward delinquency. Even less
should it do so here, when the Supreme Court has advised us
that taxpayers must demonstrate meticulous compliance
with IRS regulations to benefit from the limitations period.
64 SEAVIEW TRADING V. CIR

Id. Instead of applying that well-established authority, the
majority invents an anti-meticulous-compliance rule.

We also must apply the Supreme Court’s holding that
that § 6229’s statute of limitations is to receive “a strict
construction in favor of the Government.” Badaracco,
464 U.S. at 391. Here, the majority barely grapples with
how its interpretation of the Tax Code and IRS regulations
in this case can possibly be read as a strict construction in
favor of the government. See Maj. Op. 22 n.6. In fact, the
majority opinion adopts a loose construction disfavoring the
government.

2.

A long line of cases from our sister circuits holds that if
a taxpayer cannot show that he meticulously complied with
the filing requirements—including, for example, when the
taxpayer submits his return to the wrong office or
individual—the statute of limitations does not run and the
IRS may assess the return at any time. Coffey, 987 F.3d
at 812–13; Comm’r v. Estate of Sanders, 834 F.3d 1269,
1274–75 (11th Cir. 2016); Allnutt, 523 F.3d at 411–14;
O’Bryan Bros. v. Comm’r, 127 F.2d 645, 647 (6th Cir.
1942); W.H. Hill Co. v. Comm’r, 64 F.2d 506, 507–08 (6th
Cir. 1933); see also Friedmann, 82 T.C.M. (CCH) 381,
at *7, aff’d, 80 F. App’x 285 (3d Cir. 2003); Green,
65 T.C.M. (CCH) 2347, at *7, aff’d, 33 F.3d 1378 (5th Cir.
1994) (per curiam), cert. denied, 513 U.S. 1059 (1994).

Contrary to our court’s precedent, the majority does not
“hesitate” to disagree with our sister circuits, but casually
brushes aside in a single paragraph every one of them to have
considered the issue before us. See First Charter Fin. Corp.,
669 F.2d at 1345; Maj. Op. 20. As a close look at a sampling
of these cases will demonstrate, our sister circuits have
 SEAVIEW TRADING V. CIR 65

considered analogous issues, and have reached conclusions
that stand in stark contrast with the majority’s result.

In Allnutt v. Commissioner, the Fourth Circuit held that
the taxpayer did not meticulously comply with the filing
regulations, and the statute of limitations did not begin to
run, when the taxpayer submitted delinquent tax returns at
the wrong location. 523 F.3d at 407–10. Allnutt signed his
tax returns (which were delinquent, covering 1981–1995),
and hand-delivered them to the Baltimore District Counsel’s
office on February 21, 1997, intending that such delivery to
the IRS counsel would constitute the filing of the returns. Id.
at 408–09. These returns were later marked as received in
March 1997, but “were never further processed by the IRS.”
Id. at 409. Also on February 21, 1997, Allnutt attempted to
hand-deliver photocopied returns to a different person at the
Baltimore District Director’s office who claimed to have
authority to take the return. Id. The returns eventually were
routed to the correct IRS service center and received there in
May or June 1997. Id. at 409–10. The IRS issued a notice
of deficiency in March 2000, which would be untimely if
Allnutt’s returns were filed when he delivered them, in
February 1997, but timely if the returns were filed when they
were received at the correct location in May or June 1997.
Id. at 408, 411.

In Allnutt, the court began its analysis by articulating the
well-established principles that statutes of limitations are
construed strictly in favor of the government, and that
taxpayers must meticulously comply with the relevant
statutes and regulations to obtain the benefit of the
limitations period. Id. at 412. The court then explained that
“for returns to be considered ‘filed’ for purposes of setting
the period of limitations in motion, the returns must be
delivered, in the appropriate form, to the specific individual
66 SEAVIEW TRADING V. CIR

or individuals identified in the Code or Regulations.” Id. at
413. “Compliance with this requirement is vital so as to
apprise the proper tax official . . . of the liability of taxpayers
for the federal income tax imposed upon them.” Id.
(alteration in original) (internal quotation marks omitted).

The Fourth Circuit then concluded that Allnutt could not
demonstrate meticulous compliance because he did not
hand-deliver his returns to the correct individual—which
would have been either the Baltimore District Director or an
“administrative supervisor.” Id. In other words, it was not
enough that Allnutt hand-delivered original returns to the
IRS Counsel’s office in Baltimore, or that he dropped off
courtesy copies of the returns with an individual who stated
he had authority to accept packages on the Baltimore District
Director’s behalf. See id.

In Coffey v. Commissioner, the Eighth Circuit considered
whether a married couple had filed their tax return and
therefore could invoke the three-year statute of limitations.
See 987 F.3d at 810–11. The Coffeys filed their return with
U.S. Virgin Islands authorities on the belief that one of the
Coffeys was a “bona fide” Virgin Islands resident. Id. Bona
fide Virgin Islands residents are required to file only with the
Virgin Islands, while any other taxpayer with Virgin Islands
income must file a return with both the United States and the
Virgin Islands. Id. at 811. The Coffeys filed their returns
with the Virgin Islands and not with the IRS, but Virgin
Islands authorities sent portions of the Coffeys’ returns to the
IRS, leading to an IRS audit, and eventually to notices of
deficiency issued more than three years after the IRS
received the documents. Id. The Coffeys argued the
assessment was barred by the statute of limitations. Id. The
Eighth Circuit disagreed, concluding that the statute of
 SEAVIEW TRADING V. CIR 67

limitations never began to run because the Coffeys never
filed a return. Id. at 811–13.

In Coffey, the court began with the principle that a
taxpayer must meticulously comply with all filing
requirements in the Code and IRS regulations and concluded
that returns “are ‘filed’ if ‘delivered, in the appropriate form,
to the specified individual or individuals identified in the
Code or Regulations.’” Id. at 812 (quoting Estate of
Sanders, 834 F.3d at 1274). The Eighth Circuit clarified that
“the IRS’s actual knowledge of the income” does not begin
the limitations period. Id. at 813. Rather, it is only when the
taxpayer files the return that the period commences, even
when the IRS receives the relevant information before a
filing occurs. Id. It did not matter that the IRS received
copies of the documents themselves: “That the IRS actually
received the documents, processed and audited them, and
issued deficiency notices is irrelevant for statute of
limitations purposes.” Id.

Other circuits have uniformly reached the same
conclusion as the Fourth Circuit in Allnutt and the Eighth
Circuit in Coffey. See Estate of Sanders, 834 F.3d at 1274
(Eleventh Circuit holding that “a return does not trigger the
running of the statute of limitations unless it is filed in the
place required by the statute or regulations”); O’Bryan Bros.,
127 F.2d at 647 (Sixth Circuit holding that statute of
limitations did not run until correct IRS official received the
return because it was the taxpayer’s duty “to file the return
with the collector of the district” and “[i]t was not the duty
of the internal revenue agent in charge to file a return for the
taxpayer”); W.H. Hill Co., 64 F.2d at 507–08 (Sixth Circuit
holding that statute of limitations did not run when a return
was submitted to the Commissioner because the statute
“required that returns be filed with the collector”); see also
68 SEAVIEW TRADING V. CIR

Friedmann, 82 T.C.M. (CCH) 381, at *7 (holding that there
was no filing when the taxpayer “gave photocopies of his
1989 and 1990 returns to [the IRS’s] revenue agent” because
“[c]learly, the revenue agent was not the prescribed place for
filing those returns”), aff’d, 80 F. App’x 285 (3d Cir. 2003);
Green, 65 T.C.M. (CCH) 2347, at *7 (“[G]iving a delinquent
return to an IRS agent does not constitute filing.”), aff’d,
33 F.3d 1378 (5th Cir. 1994) (per curiam), cert. denied,
513 U.S. 1059 (1994).

The majority does not cite a single case from our sister
circuits supporting its position. It does, however, attempt to
distinguish this line of cases. The majority states that none
of these cases “involve the facts here—when an IRS revenue
agent authorized to obtain delinquent returns requested and
received the return from a taxpayer.” Maj. Op. 20. But the
majority does not explain why, under the Tax Code,
regulations, case law, other legal authority, or for any other
reason, it is significant in this context that an IRS revenue
agent “requested” the return. Maj. Op. 20. Nor does the
majority explain what is meant by a revenue agent
“authorized to obtain delinquent returns.” Maj. Op. 20. In
all the cases from our sister circuits, there is no hint that the
persons who received the taxpayer’s return were
unauthorized to obtain them; the question was whether the
persons who received the returns were empowered to
process them, i.e., whether the taxpayer submitted the return
to the right person or the right place. See, e.g., O’Bryan
Bros., 127 F.2d at 647. Like much of the majority’s opinion,
the requirement that the person receiving the return be
authorized to “obtain” it has murky origins. This “obtain”
requirement is nowhere to be found in the case law or
(perhaps it goes without saying at this point) the Tax Code
or IRS regulations. Maj. Op. 10, 15, 20, 21 n.4.
 SEAVIEW TRADING V. CIR 69

This approach also directly conflicts with our sister
circuits, which have emphasized that just because someone
at the IRS gets the return does not mean that the statute of
limitations begins to run, because to trigger the statute of
limitations the return must be filed at the correct location or
with the correct official. See, e.g., O’Bryan Bros., 127 F.2d
at 647. This is true even when, as here, the IRS relies on the
materials it receives from the taxpayer to seek adjustments
or penalties. See Coffey, 987 F.3d at 813.

The majority’s holding also directly conflicts with our
sister circuits in other ways. Because the majority’s
conclusion that the Tax Code and regulations do not govern
delinquent returns is the keystone of its holding, there is a
direct conflict between the majority’s opinion and Allnutt, in
which the Fourth Circuit sensibly held that the meticulous
compliance requirement applied to delinquent returns.
523 F.3d at 407.

Furthermore, courts have rejected the notion that a
taxpayer’s good faith belief that he has submitted his return
to the correct location can excuse meticulous compliance.
See Estate of Sanders, 834 F.3d at 1275 (holding that “a
taxpayer’s mere good faith belief” regarding the correctness
of his filing “is insufficient to cause a return filed with [the
wrong office] to start the statute of limitations period”);
Allnutt, 523 F.3d at 414 (opining that although it was “not
wholly unsympathetic to Allnutt’s plight,” a proper
application of the meticulous compliance standard required
finding that the government was not “barred from assessing
and collecting Allnutt’s considerable tax deficiencies”).
Thus, even assuming that the revenue agent’s request in this
case gave rise to Seaview’s good faith belief that it was filing
its return in fulfilling the request (which the record does not
actually support), the case law strongly suggests that such a
70 SEAVIEW TRADING V. CIR

belief would not be a ground to depart from the statute or
precedent here. As the Eleventh Circuit concluded in Estate
of Sanders, it would not be appropriate to allow a good-faith
exception unless Congress created one in the statute.
834 F.3d at 1276–79.

At a minimum, the majority has not provided a “strong
reason” to create these direct conflicts with other circuits.
Cuevas-Lopez, 934 F.3d at 1067; see First Charter Fin.
Corp., 669 F.2d at 1345.

3.

The Tax Court has also reached the same result each time
it has been asked to address this issue: When a taxpayer does
not submit its return to the right official or the right location,
it has not “filed” the return, unless and until the return
reaches the correct location and is processed there. See, e.g.,
Smyth, 113 T.C.M. (CCH) 1132, at *3; Friedmann,
82 T.C.M. (CCH) 381, at *7; Green, 65 T.C.M. (CCH) 2347,
at *7; Turco v. Comm’r, 74 T.C.M. (CCH) 1437, at *2
(1997); Metals Refin. Ltd. v. Comm’r, 65 T.C.M. (CCH)
2171, at *6–7, 10 (1993); Winnett, 96 T.C. at 807–08;
Espinoza v. Comm’r, 78 T.C. 412, 413, 422 (1982).
Therefore, I agree with the majority that “several Tax Court
cases support the IRS’s view in this litigation.” Maj. Op. 20.
But this synopsis puts it rather mildly. In fact, there are, as
the Tax Court noted below, “a plethora” of cases supporting
the conclusion that Seaview did not file its return when it
sent copies to an IRS agent and IRS counsel. Although the
Tax Court’s decisions are not binding upon us, the majority’s
casual treatment of this body of law violates our precedent,
which requires us to give such decisions respectful
consideration. Gragg, 831 F.3d at 1192; Vukasovich,
790 F.2d at 1413. Furthermore, we are not tax experts. It is
 SEAVIEW TRADING V. CIR 71

therefore unwise as well as contrary to law to ignore the Tax
Court’s precedents.

i.

Specifically, the Tax Court has repeatedly held that the
meticulous compliance standard applies with full force to
delinquent returns. Friedmann, 82 T.C.M. (CCH) 381,
at *2, 6–7 (“[W]e find that there was no filing of the subject
returns . . . when petitioner gave photocopies of his
[delinquent] returns to [the IRS’s] revenue agent. Clearly
the revenue agent was not the prescribed place for filing
those returns . . . .”); Green, 65 T.C.M. (CCH) 2347, at *7
(“[G]iving a delinquent return to an IRS agent does not
constitute filing.”).

The Tax Court has also repeatedly held that submitting a
return to an IRS agent is not a proper filing and does not
trigger the limitations period. Friedmann, 82 T.C.M. (CCH)
381, at *7; Turco, 74 T.C.M. (CCH) 1437, at *2 (holding
that photocopied returns delivered to IRS agent were not
filed because they were not “filed in the appropriate office”
and to conclude otherwise would be “to ignore the . . . place
of filing requirements”); Green, 65 T.C.M. (CCH) 2347,
at *7; Metals Refin., 65 T.C.M. (CCH) 2171, at *6–7
(holding that the delivery of partnership returns to IRS
agents did not comply with partnership return filing
requirements); Espinoza, 78 T.C. at 422 (“It was not the
responsibility of the revenue agent to transmit [the
taxpayer’s amended] returns for filing . . . .”). Likewise,
72 SEAVIEW TRADING V. CIR

submitting a return to IRS counsel is not a proper filing.
Smyth, 113 T.C.M. (CCH) 1132, at *3. 12

Moreover, even if the IRS receives the documents and
relies upon them to adjust taxes or assess penalties, the Tax
Court has determined that such reliance does not trigger the
statute of limitations. Friedmann, 82 T.C.M. (CCH) 381,
at *6 (holding that the IRS’s notice of deficiency issued
more than three years after copies sent to IRS agent was
timely because the returns were never filed); Turco,
74 T.C.M. (CCH) 1437, at *1–2 (holding photocopies of
returns were not filed even though the IRS agent “used the
photocopied returns as the basis for his audit”); Metals
Refin., 65 T.C.M. (CCH) 2171, at *6–7 (“Even if the IRS
agents received properly executed returns, delivery to such
agents does not necessarily constitute proper filing.”).

This result is hardly surprising. To assess a partnership’s
taxes under § 6229(c)(3), the IRS would presumably have to
rely on materials conveying information about the
partnership’s tax liability, such as an unfiled return. See
26 U.S.C. § 6229(c)(3) (2000). Were the IRS unable to do
so without converting such a document into a filed return,
§ 6229(c)(3) would be a dead letter. See Ariz. State Bd. for
Charter Schs., 464 F.3d at 1007 (observing that in
interpreting a statute it is for this court to “ascertain—neither
to add nor subtract, neither to delete nor to distort” the text).

The Tax Court has also repeatedly held that when a
return is submitted to the wrong location, it is not deemed
filed for statute of limitations purposes until it is received at

The majority does not reach whether Seaview filed its return when
12

it submitted copies of the return to IRS counsel in 2007. Maj. Op. 21
n.5.
 SEAVIEW TRADING V. CIR 73

the location “designated to receive such return.” Winnett,
96 T.C. at 808; see also Dingman v. Comm’r, 101 T.C.M.
(CCH) 1562, at *12–13 (2011) (holding that a delinquent
return submitted to the wrong location was filed when “an
IRS office with authority to receive and process the contents
of the package” received the package, as evidenced by the
date that the checks submitted with the returns were
processed). Therefore, even overlooking that Seaview never
filed its return to the right place, the return was also never
“filed” because—as the parties do not dispute—Seaview
cannot show that its return ever reached the Ogden service
center, the correct location for receipt and processing of its
return.

ii.

After disregarding this entire body of law, the majority
focuses on the lone Tax Court opinion that it concludes
supports its reading of the Tax Code and regulations,
Dingman v. Commissioner, 101 T.C.M. (CCH) 1562. Maj.
Op. 20. But a closer read of Dingman shows that the
majority’s reliance on this case is misplaced.

In Dingman, the taxpayer did not timely file his 1996–
2000 federal income tax returns and became the subject of
an IRS criminal investigation. Id. at *1. At some point
during Dingman’s cooperation with the investigation, his
counsel delivered a package containing the delinquent
returns—and checks to pay the outstanding tax liability—to
the IRS investigators. Id. The first of Dingman’s payments
was posted on February 19, 2003, indicating that the IRS had
received and processed his returns by that date at the latest.
Id. at *1–4, 6. More than three years later, on February 28,
2006, the IRS sought to assess additional taxes. Id. at *2, 6.
The question was whether this assessment was untimely. Id.
at *5.
74 SEAVIEW TRADING V. CIR

The government argued, in line with the authorities
outlined above, that Dingman’s 2003 submission was not a
filing for statute of limitations purposes because the returns
were delivered to the wrong IRS representative. Id. at *7.
But an unusual administrative development derailed this
argument. Id. at *7–8.

In 2003, the IRS had recently restructured itself such that
earlier regulations about the correct filing location had been
“rendered obsolete,” but, “in 2003 regulations under section
6091 continued to refer to officials whose positions had been
eliminated and to offices that had been eliminated as a result
of the reorganization, leaving taxpayers with little or no
effective regulatory guidance.” Id. at *8. The IRS sought to
rectify this situation by issuing a notice in early 2003
providing instructions on correct filing locations under the
new regime, but this document did not become effective
until April 7, 2003—after Dingman had delivered his
delinquent returns, and checks for the tax liability, to
investigators. Id. at *8–9. The IRS did not update the
regulations to reflect the reorganization until September
2004. Id. at *8. Consequently, there was an unusual lack of
guidance for taxpayers filing in the period that Dingman
submitted his returns. Id. at *9.

In this vacuum, the Tax Court found it significant that
the record showed that Dingman delivered a package of tax
returns no later than February 19, 2003 (the date the first of
Dingman’s payments was processed), and that this package
was received, by that date, at “an IRS office that had the
authority to process its contents.” Id. The government
argued that this did not matter because the IRS investigators
were not the proper recipients of the returns, and therefore
Dingman “failed to meticulously comply with the filing
requirements.” Id. at *10.
 SEAVIEW TRADING V. CIR 75

The Tax Court distinguished the authorities tending to
support the government’s position by noting, among other
things, that (1) Dingman’s filing did not contradict specific,
applicable IRS statutes or regulations (because of the lack of
applicable regulations in early 2003); (2) none of the cases
on which the government relied “involved an attempt by the
taxpayer to file executed original returns with payments”;
and (3) “none of the cases involved evidence that the
payments made with the returns were actually processed by
the IRS and credited to the taxpayer’s account.” Id. at *11.
Further, the court explained that, in light of the uncertain
regulatory environment in early 2003, the government’s
argument that IRS investigators lacked authority to accept
returns was unavailing because the government failed to
prove that investigators lacked such authority at that time.
Id.

Finally, the Tax Court reasoned that, even if the taxpayer
submits a return to someone who is not authorized to accept
it for filing, if the return is then forwarded to the correct IRS
office, the limitations period commences from the time the
designated office actually receives it. Id. at *12 (first citing
Winnett, 96 T.C. at 808; then Allnutt v. Comm’r, 84 T.C.M.
(CCH) 669 (2002)). The record demonstrated that the IRS
received the returns for processing by no later than February
19, 2003—rendering the IRS’s later assessment untimely.
Id. at *12–13.

Dingman, properly applied to the facts here, does not
support the majority’s result. First, there are crucial factual
differences between Dingman and this case. The first and
most blatant is that in Dingman there were no applicable
regulations informing the taxpayer where to file his returns.
See id. at *8; Michael Saltzman & Leslie Book, IRS Practice
and Procedure ¶¶ 5.02[2] & n.44, 5.03[1][b] & n.130 (Feb.
76 SEAVIEW TRADING V. CIR

2022) (noting that that the Tax Court concluded the returns
were filed “because the relevant Treasury Regulations had
not been revised to replace obsolete offices in the Service”).
Although the Tax Court in Dingman recognized the
“meticulous compliance” standard, see 101 T.C.M. (CCH)
1562, at *7, there were no regulations with which to
meticulously comply. Here, the majority agrees that
Seaview was subject to § 6230(i) and § 1.6031(a)-1(e). Maj.
Op. 13. This distinction alone is enough to render the
reasoning of Dingman inapplicable.

The second crucial distinction is that Dingman submitted
checks along with the five delinquent returns and, by
February 19, 2003, the IRS had actually received and
processed those checks, which demonstrated that by that
date at the latest someone with authority to process the
returns had received them. Id. at *12–13. Neither Seaview
nor the majority point to any date at which it can be shown
that the Ogden service center, or some other IRS office with
requisite authority, received and processed Seaview’s return.

This fact, in turn, played a pivotal role in the Tax Court’s
holding in Dingman, which was that the returns were filed
no later than February 19, 2003, when the IRS deposited the
money from Dingman’s checks, not that the filing occurred
on the date the returns were delivered to the IRS
investigator—sometime between late 2002 and mid-
February 2003. See id. at *1, 12–13. Thus, consistent with
established Tax Court precedent, the court did not conclude
that the filing occurred when the delinquent returns were
delivered to the someone at the IRS, but rather when the
returns were received at the correct location and processed.
Id. at *12–13 (citing Winnett, 96 T.C. at 808).

Given these important considerations, it is absurd for the
majority to state that the facts of Dingman “closely mirror
 SEAVIEW TRADING V. CIR 77

this case.” Maj. Op. 21. And this is without even addressing
other relevant distinctions, including that in Dingman the
taxpayer’s counsel hand-delivered the returns to IRS
investigators in the context of a criminal investigation. Id.
at *1. See Hertsel Shadian, 14A Mertens Law of Federal
Income Taxation § 55:8 n.3 (Feb. 2022) (“Dingman is
applicable only to hand-delivery of returns arising under the
facts present in that case, i.e., the taxpayer clearly intended
that the returns submitted to the [IRS investigator] be
delinquent returns with payments, and the Service processed
them as such and assessed the taxpayer’s payments.”).

Finally, Dingman is decidedly an outlier. See Shadian,
supra, at § 55:8 n.3; Saltzman & Book, supra at ¶ 5.03[1][b]
n.130. Even if we could somehow twist the facts of this case
to fit the unusual circumstances present in Dingman, such a
project would be dubious in light of the overwhelming
Supreme Court, Tax Court, and out-of-circuit authority
pointing in the other direction.

IV.

For all these reasons, the majority opinion should not be
the holding of this court. The majority misconstrues the
statutes and regulations, improperly fashions its own
delinquent-return filing regime, is wrongly predicated on
nonbinding internal IRS guidance, incorrectly applies a form
of implicit equitable estoppel, misreads the record, and—
contrary to basic rules of our jurisprudence—disregards
Supreme Court, out-of-circuit, and Tax Court authority.

Rather than following this dubious approach, I would
adhere to “the theory of justice that requires a judge to follow
78 SEAVIEW TRADING V. CIR

the law as it is.” Smyth, 113 T.C.M. (CCH) 1132, at *4. I
respectfully dissent. 13

13
Because Seaview’s failure to file its 2001 return is dispositive of
the issues on this appeal, I do not reach the majority’s conclusions about
whether the copies Seaview shared in 2005 and 2007 are “returns.” Maj.
Op. 22–25.