SUPPLEMENTAL OPINION
Laro, Judge:
The dispute herein involves the Rule 155 computation mandated by the Court’s Memorandum Opinion filed as Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35. The issue before the Court is one of first impression; namely, whether an estate’s underpayment for purposes of computing the fraud penalty is determined based solely on expenses which are included on the Federal estate tax return, or based on all deductible expenses including deficiency interest and professional fees which arise after the filing of the return.
We hold that the underpayment is determined by taking into account all expenses. Unless otherwise stated, section references are to the applicable provisions of the Internal Revenue Code. Rule references are to the Tax Court Rules of Practice and Procedure. Estate references are to the Estate of Emanuel Trompeter. Mr. Trompeter (the decedent) resided in Thousand Oaks, California, when he died on March 18, 1992. The estate’s coexecutors, Robin Carol Trompeter Gonzalez and Janet llene Trompeter Polachek, resided in Florida and California, respectively, when the petition was filed.
In Estate of Trompeter v. Commissioner, supra, we held that the estate was subject to the fraud penalty under section 6663(a). The estate computes the amount of this penalty based on an underpayment that takes into account all deductible expenses, including expenses for trustee’s fees, attorney’s fees, and deficiency interest that were incurred after the filing of the estate tax return. Respondent challenges the estate’s ability to compute its underpayment by deducting the latter expenses. Respondent asserts that the estate must compute its underpayment based solely on the expenses which were reported on its estate tax return.
We agree with petitioner. Section 6663(a) imposes a 75-percent penalty on the portion of “any underpayment of tax required to be shown on a return [that] is due to fraud”.1 The term “underpayment” is defined by section 6664(a) to mean
the amount by which any tax imposed by this title exceeds the excess of— (1) the sum of—
(A) the amount shown as the tax by the taxpayer on his return, plus
(B) amounts not so shown previously assessed (or collected without assessment), over
(2) the amount of rebates made.
In the case of the Federal estate tax, the “amount of tax imposed by this title” refers to the tax that “is hereby imposed on the transfer of the taxable estate of every decedent who is a citizen or resident of the United States.” Sec. 2001(a). This tax is determined based on the value of the taxable estate, sec. 2001, which, in turn, is determined by reducing the value of the gross estate by the amount of any deduction set forth in sections 2053 through 2056. Sec. 2051. Section 2053 allows a deduction for certain expenses, indebtedness, and taxes. Section 2054 allows a deduction for certain losses. Section 2055 allows a deduction for certain transfers for public, charitable, or religious uses. Section 2056 allows a deduction for certain bequests to a surviving spouse.
Nowhere does the Code or regulations thereunder say that an estate’s underpayment is based solely on deductions that appear on its estate tax return. Respondent reaches this result by analogy to a line of cases which hold that a net operating loss (nol) carryback will not reduce the amount of an income tax underpayment for purposes of computing a penalty or an addition to tax. In this Court’s seminal opinion of C.V.L. Corp. v. Commissioner, 17 T.C. 812 (1951), we held that a delinquency penalty applied to a year for which it was later determined that no tax was due on account of an NOL carryback. In reaching this result, we relied on Manning v. Seeley Tube & Box Co., 338 U.S. 561 (1950), and the Senate Finance Committee report accompanying the Revenue Act of 1942, ch. 619, 56 Stat. 798. The Supreme Court held in Manning v. Seeley Tube & Box Co., supra, that an NOL carryback eliminated a deficiency for a prior year but did not eliminate the interest that accrued thereon. The Senate Finance Committee report stated that
A taxpayer entitled to a carry-back of a net operating loss * * * will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss * * *. He must therefore file his return and pay his tax without regard to such deduction, and must file a claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back. * * * [S. Rept. 1631, 77th Cong., 2d Sess. 123 (1942), 1942-2 C.B. 504, 597.]
This Court subsequently extended the principle enunciated in C.V.L. Corp. v. Commissioner, supra, to an NOL that was carried back to a year in which the taxpayer was subject to an addition to tax for fraud. The Court held in Petterson v. Commissioner, 19 T.C. 486 (1952), that the original deficiency was the proper base for computing the fraud penalty, and that the NOL carryback did not reduce this deficiency for purposes of thaf computation.
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SUPPLEMENTAL OPINION
Laro, Judge:
The dispute herein involves the Rule 155 computation mandated by the Court’s Memorandum Opinion filed as Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35. The issue before the Court is one of first impression; namely, whether an estate’s underpayment for purposes of computing the fraud penalty is determined based solely on expenses which are included on the Federal estate tax return, or based on all deductible expenses including deficiency interest and professional fees which arise after the filing of the return.
We hold that the underpayment is determined by taking into account all expenses. Unless otherwise stated, section references are to the applicable provisions of the Internal Revenue Code. Rule references are to the Tax Court Rules of Practice and Procedure. Estate references are to the Estate of Emanuel Trompeter. Mr. Trompeter (the decedent) resided in Thousand Oaks, California, when he died on March 18, 1992. The estate’s coexecutors, Robin Carol Trompeter Gonzalez and Janet llene Trompeter Polachek, resided in Florida and California, respectively, when the petition was filed.
In Estate of Trompeter v. Commissioner, supra, we held that the estate was subject to the fraud penalty under section 6663(a). The estate computes the amount of this penalty based on an underpayment that takes into account all deductible expenses, including expenses for trustee’s fees, attorney’s fees, and deficiency interest that were incurred after the filing of the estate tax return. Respondent challenges the estate’s ability to compute its underpayment by deducting the latter expenses. Respondent asserts that the estate must compute its underpayment based solely on the expenses which were reported on its estate tax return.
We agree with petitioner. Section 6663(a) imposes a 75-percent penalty on the portion of “any underpayment of tax required to be shown on a return [that] is due to fraud”.1 The term “underpayment” is defined by section 6664(a) to mean
the amount by which any tax imposed by this title exceeds the excess of— (1) the sum of—
(A) the amount shown as the tax by the taxpayer on his return, plus
(B) amounts not so shown previously assessed (or collected without assessment), over
(2) the amount of rebates made.
In the case of the Federal estate tax, the “amount of tax imposed by this title” refers to the tax that “is hereby imposed on the transfer of the taxable estate of every decedent who is a citizen or resident of the United States.” Sec. 2001(a). This tax is determined based on the value of the taxable estate, sec. 2001, which, in turn, is determined by reducing the value of the gross estate by the amount of any deduction set forth in sections 2053 through 2056. Sec. 2051. Section 2053 allows a deduction for certain expenses, indebtedness, and taxes. Section 2054 allows a deduction for certain losses. Section 2055 allows a deduction for certain transfers for public, charitable, or religious uses. Section 2056 allows a deduction for certain bequests to a surviving spouse.
Nowhere does the Code or regulations thereunder say that an estate’s underpayment is based solely on deductions that appear on its estate tax return. Respondent reaches this result by analogy to a line of cases which hold that a net operating loss (nol) carryback will not reduce the amount of an income tax underpayment for purposes of computing a penalty or an addition to tax. In this Court’s seminal opinion of C.V.L. Corp. v. Commissioner, 17 T.C. 812 (1951), we held that a delinquency penalty applied to a year for which it was later determined that no tax was due on account of an NOL carryback. In reaching this result, we relied on Manning v. Seeley Tube & Box Co., 338 U.S. 561 (1950), and the Senate Finance Committee report accompanying the Revenue Act of 1942, ch. 619, 56 Stat. 798. The Supreme Court held in Manning v. Seeley Tube & Box Co., supra, that an NOL carryback eliminated a deficiency for a prior year but did not eliminate the interest that accrued thereon. The Senate Finance Committee report stated that
A taxpayer entitled to a carry-back of a net operating loss * * * will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss * * *. He must therefore file his return and pay his tax without regard to such deduction, and must file a claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back. * * * [S. Rept. 1631, 77th Cong., 2d Sess. 123 (1942), 1942-2 C.B. 504, 597.]
This Court subsequently extended the principle enunciated in C.V.L. Corp. v. Commissioner, supra, to an NOL that was carried back to a year in which the taxpayer was subject to an addition to tax for fraud. The Court held in Petterson v. Commissioner, 19 T.C. 486 (1952), that the original deficiency was the proper base for computing the fraud penalty, and that the NOL carryback did not reduce this deficiency for purposes of thaf computation.
This and every other Court that has considered whether an NOL carryback reduces an underpayment for purposes of computing a penalty or an addition to tax have concluded that the principle expressed in C.V.L. Corp. v. Commissioner, supra, is correct; namely, that the NOL carryback may not reduce the underpayment. See, e.g., Arc Elec. Constr. Co. v. Commissioner, 923 F.2d 1005, 1009 (2d Cir. 1991), affg. on this issue and revg. and remanding T.C. Memo. 1990-30; Willingham v. United States, 289 F.2d 283, 287-288 (5th Cir. 1961); Simon v. Commissioner, 248 F.2d 869, 877 (8th Cir. 1957), affg. on this issue and revg. and remanding U.S. Packing Co. v. Commissioner, T.C. Memo. 1955—194; Nick v. Dunlap, 185 F.2d 674 (5th Cir. 1950); Rictor v. Commissioner, 26 T.C. 913, 914-915 (1956); Auerbach Shoe Co. v. Commissioner, 21 T.C. 191, 196 (1953), affd. 216 F.2d 693 (1st Cir. 1954); Blanton Coal Co. v. Commissioner, T.C. Memo. 1984-397; Pusser v. Commissioner, a Memorandum Opinion of this Court dated Dec. 7, 1951, affd. per curiam 206 F.2d 68 (4th Cir. 1953); see also United States v. Keltner, 675 F.2d 602, 605 (4th Cir. 1982). Respondent’s reliance on this line of cases for a similar result here, however, is misplaced. The ability to carry back an NOL depends on the happenings in a taxable year after the taxable year in which the underpayment is due to fraud, and the subsequent year may be as far away as 3 years after the year of the fraudulent underpayment. The principle of C.V.L. Corp. v. Commissioner, supra, reflects the fact that each taxable year is a separate year for income tax purposes, and that a taxpayer may not reduce his or her liability for fraudulent conduct in one year by virtue of unforeseen or fortuitous circumstances that happen to occur in a later year. See Paccon, Inc. v. Commissioner, 45 T.C. 392 (1966).
In the case of the Federal estate tax, however, the same rationale does not apply. The Federal estate tax is not calculated on an annual basis, but is a one-time charge or excise that is computed on the value of a decedent’s gross estate less certain deductions which are specifically allowed by the Code. Some of these deductions, like the ones at hand, cannot be determined until after a return is filed. Unlike an NOL carryback, these deductions do not depend on unrelated, unforeseen, or fortuitous circumstances that may occur in later years. These deductions are directly related to a determination of an estate’s tax liability. In contrast to the determination of Federal income tax liability, a determination of Federal estate tax liability is not made based solely on deductions that are required to be reported on the appropriate tax return as filed. Indeed, our rules explicitly recognize the fact that even some expenses incurred at or after a trial are deductible in determining an estate’s Federal estate tax liability. See Rule 156; see also Estate of Bailly v. Commissioner, 81 T.C. 246, supplemented by 81 T.C. 949 (1983).
We also disagree with respondent’s argument in this case because it could possibly lead to the imposition of the fraud penalty when the taxpayer/estate does not have an underpayment of tax and, indeed, may even be entitled to an overpayment. Such a result is inconsistent with jurisprudence. As this Court has consistently held, the fraud penalty does not apply without an underpayment because “[absent] an underpayment, there is nothing upon which the fraud addition to tax [or penalty, as it is now known] would attach.” See, e.g., Newman v. Commissioner, T.C. Memo. 1992-652; Lerch v. Commissioner, T.C. Memo. 1987-295, affd. 877 F.2d 624 (7th Cir. 1989); Hamilton v. Commissioner, T.C. Memo. 1987-278, affd. without published opinion 872 F.2d 1025 (6th Cir. 1989); Shih-Hsieh v. Commissioner, T.C. Memo. 1986-525, affd. without published opinion 838 F.2d 1203 (2d Cir. 1987); Estate of Cardulla v. Commissioner, T.C. Memo. 1986-307; Apothaker v. Commissioner, T.C. Memo. 1985-445; Boggs v. Commissioner, T.C. Memo. 1985-429; Meredith v. Commissioner, T.C. Memo. 1985-170; Stephens v. Commissioner, T.C. Memo. 1984-449; Phillips v. Commissioner, T.C. Memo. 1984-133; see also Compton v. Commissioner, T.C. Memo. 1983-642; Hansen v. Commissioner, T.C. Memo. 1981-98; Nunez v. Commissioner, T.C. Memo. 1969-216; Brown v. Commissioner, T.C. Memo. 1968-29, affd. per curiam 418 F.2d 574 (9th Cir. 1969). Moreover, as the Court of Appeals for the Fifth Circuit has stated in a similar setting:
The taxpayer sought to introduce evidence to show the market value of the option at the time it was given. This evidence was excluded in the court below. In addition, the taxpayer attempted to show additional costs incurred for the timber and not claimed on the 1949 return. Likewise, the court below excluded this evidence. Also, with respect to the unreported sales, the taxpayer proffered evidence as to alleged additional costs incident to the sales not reported on the 1949 return. Again, the court below excluded the evidence as being irrelevant. This was error. Indeed, the appellee, United States, confesses error as to the exclusion of this evidence and concedes that the case should be remanded for a new trial. This undoubtedly is the correct view, for these alleged additional costs and the reasonable market value of the option, if proven, are relevant to the existence of a tax deficiency. Internal Revenue Code of 1939, §293(b). Since fraud on the part of the taxpayer as to the alleged deficiencies is the issue in this case, it is correct to state that if there is no deficiency, there can be no fraud in connection with the alleged deficiency. This evidence should have been received. [Jenkins v. United States, 313 F.2d 624, 627 (5th Cir. 1963).]
We have also considered whether an estate may deduct the items reported on its estate tax return, in order to determine its underpayment for purposes of applying section 6663(a), as well as any unreported item that is properly deductible as of the date that the estate tax return is filed. Such a result would be reached by interpreting the phrase “tax required to be shown on a return”, as it appears in section 6663(a), to mean that an estate must determine the related underpayment for that section by taking into account only those items that could have been properly deducted from the gross estate on the date that the return was filed. We reject this interpretation. Congress did not intend for that phrase to be understood in a temporal sense but intended that the phrase serve as a rule of classification. In other words, the phrase “tax required to be shown on a return” merely refers to the type of tax that is subject to section 6663(a); namely, a tax payable with a return as opposed to, for example, a tax payable by stamp. In addition to our literal reading of section 6663(a), in the view of the text of section 6663 as a whole, we find Congress’ intent for the relevant phrase by examining the evolution of section 6663(a). Section 6663(a) was added to the Code by section 7721(a) of the Omnibus Budget Reconciliation Act of 1989 (the 1989 Act), Pub. L. 101-239, 103 Stat. 2106, 2395-2398. Prior to the passage of the 1989 Act, the fraud penalty (or addition to tax, as it was then known) was contained in former section 6653(b) and (e). This former section provided:
SEC. 6653(b). Fraud.—
(1) In GENERAL. — If any part of any underpayment * * * of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.
# ^ ^
(e) Failure To Pay Stamp Tax. — Any person * * * who willfully fails to pay any tax imposed by this title which is payable by stamp, coupons, tickets, books, or other devices or methods prescribed by this title or by regulations under authority of this title, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty of 50 percent of the total amount of the underpayment of the tax.
Section 7721(a) of the 1989 Act amended former section 6653 to read almost verbatim with former section 6653(e); i.e., section 6653 now applies only to a failure to pay tax by way of stamps, coupons, tickets, books, or other devices or methods prescribed by the Code or regulations thereunder. Section 7721(a) of the 1989 Act also created section 6663(a) to impose the fraud penalty on “tax required to be shown on a return”. Congress did not intend for the 1989 Act, as it applied to the fraud and accuracy-related penalties, to create a new body of law that applied thereto. The reason for the change, as stated by the House Committee on the Budget, was:
The committee believes that the number of different penalties that relate to accuracy of a tax return, as well as the potential for overlapping among many of these penalties, causes confusion among taxpayers and leads to difficulties in administering these penalties by the IRS. Consequently, the committee has revised these penalties and consolidated them. The committee believes that its changes will significantly improve the fairness, comprehensibility, and administrability of these penalties. [H. Rept. 101-247, at 1388 (1989).]
Our interpretation of the relevant phrase is also supported by Congress’ recognition of the fact that some taxes are payable by return and that other taxes are payable by stamp. Section 6511(a), for example, provides different limitations for credit or refund depending on whether it is “in respect of which tax the taxpayer is required to file a return * * * [or] which is required to be paid by means of a stamp”. Likewise, section 6601(a) imposes interest on “any amount of tax imposed by this title (whether required to be shown on a return, or to be paid by stamp or by some other method) [that] is not paid on or before the last day prescribed for payment”. Similarly, section 6501(a) generally provides that “the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed * * * or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid”.
Respondent relies on the principles of cases such as Badaracco v. Commissioner, 464 U.S. 386, 401 (1984), and Helvering v. Mitchell, 303 U.S. 391, 401 (1938), to the effect that fraud is established upon the filing of a fraudulent return and that the fraud penalty reimburses the Government for detecting, investigating, and prosecuting fraud. Although we have no qualms about respondent’s recitation of this well-settled law, whether the estate is liable for fraud is not at issue here. We decided that issue in Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35, where we found that the estate had committed fraud when it filed its estate tax return. We disagree with any implication, however, that this body of law supports an interpretation of the phrase “tax required to be shown on a return” contrary to that which we espouse. The relevant phrase does not apply just to cases of fraud. The same phrase appears in section 6662(a), which, among other things, imposes a 20-percent accuracy-related penalty on underpayments attributable to negligence and substantial understatement.
We hold that an estate’s underpayment is determined by taking into account all amounts which it is allowed to deduct in computing its Federal estate tax liability. Respondent is concerned that our holding will lead to bad tax policy in that the “government’s reimbursement [through the fraud penalty] could be consumed by the * * * [estate’s] counsels’ fees and fees being paid to the trustees, who happen to be the beneficiaries of the estate”. We are not as concerned. Although it is true that fees for professionals such as attorneys and trustees may be considerable expenses in the administration of an estate, only those fees that are legitimate and reasonable are deductible. We also note that respondent’s policy argument is better aimed at Congress.
We have considered all arguments by respondent for a holding contrary to that which we reach herein, and, to the extent not discussed above, have found those arguments to be irrelevant or without merit. To reflect the foregoing,
An appropriate order will be issued.
Reviewed by the Court.
Chabot, Swift, Jacobs, Parr, Wells, Colvin, Foley, Vasquez, Gale, Thornton, and Marvel, JJ., agree with this majority opinion.