dissenting.
The plain language of § 6501(c)(1) of the Internal Revenue Code conveys a different message to me than it does to the *402Court. That language is clear enough: “In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.” 26 U. S. C. § 6501(c)(1). What is not clear to me is why this is a case of “a false or fraudulent return.”
In both cases before the Court, the Commissioner assessed deficiencies based on concededly nonfraudulent returns. The taxpayers’ alleged prior fraud was not the basis for the Commissioner’s action. Indeed, whether or not the Commissioner was obligated to accept petitioners’ amended returns, he in fact elected to do so and to use them as the basis for his assessment.1 When the Commissioner initiates a deficiency proceeding on the basis of a nonfraudulent return, I do not believe that the resulting case is one “of a false or fraudulent return.”
The purpose of the statute supports this reading. The original version of § 6501(c) was enacted in 1921. It was true in 1921, as it is today, that the fraudulent concealment of the facts giving rise to a claim tolled the controlling statute of limitations until full disclosure was made. Fraud did not entirely repeal the bar of limitations; rather the period of limitations simply did not begin to run until the fraud was discovered, or at least discoverable. See, e. g., Exploration Co. v. United States, 247 U. S. 435 (1918). Moreover, this Court soon ruled that if a return constitutes an honest and genuine attempt to satisfy the law, it is sufficient to commence the running of the statute of limitations. Zellerbach Paper Co. v. Helvering, 293 U. S. 172 (1934).2 The Court has subsequently adhered to this position. See Commissioner v. *403Lane-Wells Co., 321 U. S. 219 (1944); Germantown Trust Co. v. Commissioner, 309 U. S. 304 (1940). For example, the Court has construed another portion of the statute, dealing with underreporting of income, as inapplicable to returns which disclose the facts forming the basis for the deficiency.
“We think that in enacting [the statute] Congress manifested no broader purpose than to give the Commissioner an additional two years to investigate tax returns in cases where, because of a taxpayer’s omission to report some taxable item, the Commissioner is at a special disadvantage in detecting errors. In such instances the return on its face provides no clue as to the existence of the omitted item. On the other hand, when, as here, the understatement of a tax arises from an error in reporting an item disclosed on the face of the return the Commissioner is at no such disadvantage. ” Colony, Inc. v. Commissioner, 357 U. S. 28, 36 (1958).
In light of the purposes and common-law background of the statute, as well as this Court’s previous treatment of what a “return” sufficient to commence the running of the limitations period is, it seems apparent that an assessment based on a nonfraudulent amended return does not fall within § 6501(c)(1). Once the amended return is filed the rationale for disregarding the limitations period is absent. The period of concealment is over, and under general common-law principles the limitations period should begin to run.3 The filing of the return means that the Commissioner is no longer under any disadvantage; full disclosure has been made and there is no reason why he cannot assess a deficiency within the statutory period.
*404The 1921 statute read as follows:
“[I]n the case of a false or fraudulent return with intent to evade tax, or of a failure to file a required return, the amount of tax due may be determined, assessed, and collected, and a suit or proceeding for the collection of such amount may be begun, at any time after it becomes due.” Revenue Act of 1921, § 250(d), 42 Stat. 265.
Under this statute, the filing of a fraudulent return had no greater effect on the limitations period than the filing of no return at all. In either case, since the relevant facts had not been disclosed to the Commissioner, the proper tax could be assessed “at any time.” In 1954 the statute was bifurcated; the provisions relating to a failure to file were placed into § 6501(c)(3).4 The legislative history of this revision indicates that the division was not intended to change the statute's meaning.6 This history supports petitioners’ reading of the statute. Fraudulent returns were treated the same as no return at all since neither gives the Commissioner an adequate basis to attempt an assessment. Once that basis is provided, however, the statute is inapplicable; it is no longer a “case of a false or fraudulent return.”
The Commissioner practically concedes as much since he agrees with the ruling in Bennett v. Commissioner, 30 T. C. 114 (1958), acq., 1958-2 Cum. Bull. 3, that if the taxpayer fraudulently fails to file a return, the limitations period nevertheless begins to run once a nonfraudulent return is filed. See also Rev. Rui. 79-178, 1979-1 Cum. Bull. 435. Yet there is nothing in the history of this statute indicating that Congress intended a bifurcated reading of a simple statutory command. There is certainly no logical reason supporting such a result; the Commissioner is if anything under *405a greater disadvantage when the taxpayer originally filed no return at all, since at least in the (c)(1) situation the Commissioner can compare the two returns. If the Commissioner can assess a deficiency within three years when no return was previously filed, he can do the same if the original return was fraudulent.6
Whatever the correct standard for construing a statute of limitations when it operates against the Government, see ante, at 391-392, surely the presumption ought to be that some limitations period is applicable.
“It probably would be all but intolerable, at least Congress has regarded it as ill-advised, to have an income tax system under which there never would come a day of final settlement and which required both the taxpayer and the Government to stand ready forever and a day to produce vouchers, prove events, establish values and recall details of all that goes into an income tax contest. Hence, a statute of limitation is an almost indispensable *406element of fairness as well as of practical administration of an income tax policy.” Rothensies v. Electric Storage Battery Co., 329 U. S. 296, 301 (1946).
However, under the Commissioner’s position, adopted by the Court today, no limitations period will ever apply to the Commissioner’s actions, despite petitioners’ attempts to provide him with all the information necessary to make a timely assessment.
“Respondent would leave the statute open for that portion of eternity concurrent with the taxpayer’s life, whether he lives 3 score and 10 or as long as Methuselah. In most religions, one can repent and be saved, but in the peculiar tax theology of respondent, no act of contrition will suffice to prevent the statute from running in perpetuity. Merely to state the proposition is to refute it, unless some very compelling reasons of policy require visiting this absurdity on the taxpayer. ” Klemp v. Commissioner, 77 T. C. 201, 207 (1981) (Wilbur, J., concurring).7
If anything, considerations of tax policy argue against the result reached by the Court today. In a system based on voluntary compliance, it is crucial that some incentive be given to persons to reveal and correct past fraud. Yet the rule announced by the Court today creates no such incentive; a taxpayer gets no advantage at all by filing an honest return. Not only does the taxpayer fail to gain the benefit of a limitations period, but at the same time he gives the Commissioner additional information which can be used against him at any time. Since the amended return will not give the taxpayer a defense in a criminal or civil fraud action, see ante, at 394, *407there is no reason at all for a taxpayer to correct a fraudulent return. Apparently the Court believes that taxpayers should be advised to remain silent, hoping the fraud will go undetected, rather than to make full disclosure in a proper return. I cannot believe that Congress intended such a result.8
I respectfully dissent.
Applicable regulations indicate that the amended returns filed by petitioners must be the basis for his assessment. See Treas. Reg. § 301.6211-1(a), 26 CFR § 301.6211-l(a) (1983).
See also Florsheim Bros. Co. v. United States, 280 U. S. 453, 462 (1930).
It is axiomatic that statutes in derogation of the common law should be narrowly construed, as the Court pointed out earlier this Term. See Norfolk Redevelopment & Housing Authority v. Chesapeake & Potomac Tel. Co., ante, at 35-36.
“In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” 26 U. S. C. § 6501(c)(3).
See S. Rep. No. 1622, 83d Cong., 2d Sess., 583-585 (1954); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A413-A414 (1954).
The Court attempts to justify its position by reference to § 6501(e) (1)(A), which provides a 6-year limitations period for a taxpayer who nonfraudulently omits more than 25% of his or her gross income, noting that the taxpayer cannot escape this extended period by filing an amended return. Ante, at 395-396. However, this Court has never so held; the majority justifies its position only by assuming its conclusion as to the correct construction of § 6501(e)(1)(A), an issue not before the Court. The Court cites only two old Tax Court decisions neither of which considers the arguments advanced by petitioners here. See Houston v. Commissioner, 38 T. C. 486 (1962); Goldring v. Commissioner, 20 T. C. 79 (1953). Moreover, it is incorrect that the taxpayer who files a fraudulent return is in a better position than the taxpayer who innocently understates his income by more than 25%, since the former is subject to criminal penalties under a 6-year statute of limitations. See 26 U. S. C. § 6531. He is also subject to a 50% penalty. See 26 U. S. C. § 6653(b). Thus, both taxpayers face the same limitations period, though the sanctions faced by the former are much more severe. Finally, the Commissioner is in no position to rely on a disparity of treatment between two separate parts of the statute, §§ 6501(c)(1) and 6501(e)(1)(A), since he is willing to tolerate disparate treatment between (c)(1) and (c)(3), which have the same statutory origin and purpose.
Even Judge Wilbur's estimation of the sweep of the Commissioner’s position may be too modest, for under § 6901(c)(1) the Commissioner is entitled to assess deficiencies against a taxpayer’s beneficiaries after his or her death for one year after the limitations period runs. Since the limitations period will never run, the Commissioner may presumably hound a taxpayer’s beneficiaries and their descendants in perpetuity.
The Court also argues that the Commissioner cannot be expected to comply with a limitations period since his civil investigation will be hampered if he has referred the fraud case to the Department of Justice for criminal prosecution. Ante, at 399. If that is the problem, however, then in an appropriate case the limitations period could be tolled during the pendency of the criminal investigation. Tolling during periods in which an action could not reasonably have been brought is much more in accord with usual limitations principles than the result the Court reaches today. Additionally, the conflicting demands of dual civil and criminal investigations are evidently no obstacle to the Commissioner in the fraudulent-failure-to-file context, since the Commissioner there is able to live with a 3-year limitations period. In any event, the need to conduct criminal investigations, which in all events must end or result in an indictment within six years, does not justify the power to assess deficiencies in perpetuity, and even in cases, such as No. 82-1509, where no reference to the Department of Justice is ever made.