Klemp v. Commissioner

77 T.C. 201, 1981 U.S. Tax Ct. LEXIS 87

• Court: United States Tax Court
• Decided: August 5, 1981
• Docket: Docket No. 14491-79
• Status: Published

Opinions

OPINION

Hall, Judge:

This case is before the Court on petitioners’ motion for summary judgment. Rule 121, Tax Court Rules of Practice and Procedure.

Respondent determined deficiencies in petitioners’ taxes, plus additions to tax for fraud under section 6653(b)¹ as follows:

Addition to tax

Year Deficiency under sec. 6653(b)²

1970.$1,347 $1,868

1971. 1,452 4,111

1972. 2,079 7,658

1973. 4,860 10,946

The issue for decision is whether the statute of limitations bars the assessment and collection of deficiencies in income taxes and additions to the taxes for the years 1970 through 1973.

For purposes of this motion only, the facts have been fully stipulated and are found accordingly.

Raymond D. and Ann L. Klemp, husband and wife, resided in Eugene, Oreg., at the time they filed their petition. Petitioners timely filed joint income tax returns for the years 1970, 1971, and 1973. Petitioners filed their 1972 joint income tax return on June 21, 1973. (These returns will be referred to as petitioners’ original returns.)

There was an underpayment of the tax required to be shown on petitioners’ original returns for each of the years 1970 through 1973. All or a part of each such underpayment was due to fraud. Petitioners omitted from their original 1973 return gross income in excess of 25 percent of the gross income reported and failed to disclose receipt of such omitted gross income on the return or in a statement attached thereto.

In a letter dated July 26, 1974, respondent notified petitioners that their original 1973 return was to be audited. On October 17, 1974, petitioners met for the first time with a representative of respondent. At that meeting, they presented respondent’s representative with amended income tax returns (the amended returns) for the years 1970 through 1973.

None of petitioners’ amended returns omits gross income exceeding 25 percent of the reported amounts. In addition, the tax underpayments, if any, not reported on the amended returns are not due to fraud.

Respondent issued his notice of deficiency in this case on July 9,1979.

In their motion for summary judgment petitioners claim that respondent’s proposed assessments are barred by the statute of limitations found in section 6501(a).³ Respondent, on the other hand, asserts that since petitioners’ original returns were fraudulent, section 6501(c)(1)⁴ controls and he may assess a tax at any time. Alternatively, respondent contends that since petitioners’ original fraudulent 1973 return omitted from gross income an amount in excess of 25 percent of the amount reported, his proposed assessment for 1973 is not barred because the applicable period of limitations is 6 years as provided in section 6501(e).⁵

This case presents the same question we addressed in Dowell v. Commissioner, 68 T.C. 646 (1977), revd. 614 F.2d 1263 (10th Cir. 1980). In Dowell, the taxpayers initially filed fraudulent income tax returns for the years 1963 through 1966. Subsequently, the taxpayers filed nonfraudulent amended returns. More than 3 years after the filing of the amended returns, respondent and the taxpayers entered into agreements to extend the period of limitations for assessing a tax. Respondent ultimately issued his notice of deficiency within the time provided for by the extensions. Since the extensions are valid only if executed within the period of limitations (sec. 6501(c)(4)), the question in Dowell was whether the amended returns barred respondent from the assessment and collection of taxes.

We held that petitioners’ filing of the original fraudulent returns controlled the period of limitations, that the áménded returns had no effect on the period of limitations, and, accordingly, under section 6501(c)(1), respondent was entitled to assess the tax at any time. The Tenth Circuit reversed.

In the present case, petitioners ask that we abáfidoñ our position in Dowell and adopt the position of the Tenth Circuit. Based on a thorough reevaluation of this issue, we ccittclude that the Tenth Circuit’s result in Dowell is correct.

Section 6501(a) provides that, except as otherwise provided, the period of limitations for the assessment of a tax runs for 3 years after the return is filed. The two major categories of exceptions to this general rule are found in sections 6501(c) and 6501(e). Section 6501(c)(1) provides that in the case of the filing of a false or fraudulent return with the intent to evade tax, the tax may be assessed at any time. Section 6501(e) provides that, except as otherwise provided in section 6501(c), in the case of a taxpayer who omits from gross income an amount in excess of 25 percent of the gross income reported on the return, the tax may be assessed at any time within 6 years after the return was filed.

The Tenth Circuit in Dowell pointed out that unlike sections 6501(a) and 6501(e), section 6501(c)(1) is not a statute of limitations but rather the antithesis thereof.⁶ Section 6501(c)(1) provides that under certain circumstances there is no period of limitations. The entire thrust of the Tenth Circuit’s opinion, with which we agree, is that the filing of the amended returns did not change a period of limitations but rather started one. Prior to the filing of petitioners’ amended returns in this case, no period of limitations was running. Upon the filing of the correct amended returns, the 3-year statute of limitations started running.⁷

Although it can be argued that "the return” in section 6501(a) indicates that for the purpose of the various statutes of limitations contained in section .6501 there is only one return per year, presumably the first return filed,⁸ such a narrow reading of the statute is not appropriate when there is a good policy reason for a broader interpretation. While there is a general 3-year statute of limitations in section 6501(a), as we have noted above, other subsections of section 6501 provide longer or unlimited periods for assessment and collection of the tax. For example, subsection (c) provides for no limitation in the case of false returns or no returns, and subsection (e) provides for a 6-year statute in the case of substantial omissions of income. These various limitations are intended to give respondent adequate time to assess the tax. In The Colony, Inc. v. Commissioner, 357 U.S. 28 (1958), the Supreme Court noted that the congressional purpose underlying the enactment of the predecessor to section 6501(e) was—

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 to the existence of the omitted item. [357 U.S. at 36.]

Similarly, the purpose of section 6501(c)(1) is to provide the Commissioner with an unlimited amount of time when he is at a special disadvantage based on the taxpayer’s fraud. This is the position we took in Bennett v. Commissioner, 30 T.C. 114 (1958), where we held that the filing of a return subsequent to the fraudulent failure to file a return was sufficient to start the running of the period of limitations. In Bennett v. Commissioner, supra at 123-124, we stated:

For, once a nonfraudulent return is filed, putting the Commissioner on notice of a taxpayer’s receipts and deductions, there can be no policy in favor of permitting assessment thereafter at any time without limitation. We think that the statute of limitations begins to run with the filing of such returns. Cf. J. P. Bell Co., 3 B.T.A. 254, 255; Paul Haberland, 25 B.T.A. 1370, 1376-1377; Helvering v. Campbell, 139 F.2d 865, 868 (C. A. 4). Accordingly, unless the delinquent returns were themselves fraudulent, the period of limitations began to run on April 21, 1950, when they were filed, * * *

Based on this reasoning, we can see no reason for not allowing the section 6501(a) period of limitations to control in the present case.⁹

The second issue raised by respondent is his assertion that since petitioners omitted from gross income an amount in excess of 25 percent of the amount reported on their original fraudulent 1973 return, the applicable period of limitations is 6 years, as provided in section 6501(e), instead of the unlimited period contained in section 6501(c). Section 6501(e) explicitly does not apply to situations covered by section 6501(c). Respondent stipulated that petitioners’ original 1973 return was fraudulent. Accordingly, no period of limitations began running upon the filing of petitioners’ original return. The only period of limitations that ever became applicable in this case is the period provided in section 6501(a), which period expired before respondent mailed his notice of deficiency.¹⁰

Based on the foregoing, petitioners’ motion for summary judgment will be granted.

An appropriate order and decision will be entered.

Reviewed by the Court.

1 A11 section references are to the Internal Revenue Code of 1954 as in effect during the years in issue.

2 The fraud penalties are larger than the deficiencies because the deficiencies are based on the amended returns while the fraud penalties are based on the original returns. See sec. 6653(cXl).

3 Sec. 6501(a) provides:

(a) General Rule. — Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) * * * and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.

4 Sec. 6501(c)(1) provides:

(c) Exceptions.—

(1) False return. — 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.* * *

5 The relevant portion of sec. 6501(e) is sec. 6501(e)(1)(A), which provides:

(A) General rule. — If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the 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 within 6 years after the return was filed.

6 That sec. 6501(cXl) is not a statute of limitations can be discerned from an examination of what constitutes a statute of limitations. A statute of limitations limits the time within which an action can be taken. See 53 C.J.S., Limitations of Actions, sec. 1; 51 Am. Jur. 2d, Limitations of Actions, sec. 2. Sec. 6501(cXl), as pointed out by the Tenth Circuit, does not provide any time limit on the assessment or collection without assessment of taxes.

In addition, legislative history indicates that Congress does not view sec. 6501(c)(1) as a statute of limitations. In discussing sec. 276(a) of the 1934 Code (a predecessor to sec. 6501(c)(1)), the House report commented:

“The present law permits the government to assess the tax without regard to the statute of limitations in case of failure to file a return or in case of a fraudulent return.”

H. Rept. 704, 73d Cong., 2d Sess. 35 (1934). See also S. Rept. 558, 73d Cong., 2d Sess. 44 (1934).

7 The Fifth Circuit in Woolf v. United States, 578 F.2d 1103 (5th Cir. 1978), adopted a somewhat different approach in dealing with sec. 6501(cX2). In Woolf, the taxpayer willfully attempted to defeat or evade FICA taxes. Under such circumstances, sec. 6501(c)(2) provides that such taxes may be assessed or collected without assessment at any time. Eventually, the taxpayer filed untimely but substantially accurate returns. The taxpayer argued that the filing of such returns started the running of the sec. 6501(a) period of limitations. The Fifth Circuit disagreed and emphasized that the key inquiry under sec. 6501(c)(2) is whether the taxpayer established that his willful attempt to evade taxes ended with the filing of his untimely returns. Based on the taxpayer’s failure to establish that fact, the court held that there was no applicable period of limitations. The court specifically stated that, assuming the initial applicability of sec. 6501(cX2), it was. not deciding whether the period of limitations provided under sec. 6501(a) would start running upon the later filing of correct amended returns.

8 See, e.g., Sargent v. Commissioner, 22 B.T.A. 1270 (1931) (taxpayers’ original return started the running of the period of limitations and such period cannot be affected by the filing of amended returns); Weaver v. Commissioner, 4 B.T.A. 15 (1926) (statute of limitations begins running on the filing of original — not amended — returns); National Refining Co. of Ohio v. Commissioner, 1 B.T.A. 236 (1924) (the phrase "the return” has a definite article and singluar subject and therefore can only mean the return contemplated by the relevant statute).

9 Were respondent not precluded from assessing and collecting the deficiency by the running of the statute of limitations, he would not be prevented from collecting the fraud penalty because petitioners filed amended nonfraudulent returns. It is well established that the filing of an amended return does not affect the amount of an addition to tax which results from a taxpayer’s original return. Bennett v. Commissioner, 30 T.C. 114, 123 (1958); George M. Still, Inc. v. Commissioner, 19 T.C. 1072, 1076-1077 (1953), affd. 218 F.2d 639 (2d Cir. 1955).

10 In Dowell v. Commissioner, 68 T.C. 646, 649 (1977), we observed that "It is well settled that when a taxpayer files an original return and thereafter an amended return, the statute of limitations begins to run from the date of the original return, and not the date of the filing of the amended return.” Absent a fraudulent return, the filing of a subsequent amended return after an original nonfraudulent return has been filed will, of course, not extend the period of limitations under sec. 6501(a) or 6501(e). The respective periods under these sections will continue to commence with the filing of the original return, and not the amended return. See Houston v. Commissioner, 38 T.C. 486 (1962).