The opinion
SIMPSON, J., concurring: I agree with the conclusion of the majority, but I have somewhat different reasons for reaching that conclusion.
In my view, there were reasonable grounds for our holding in Durovic v. Commissioner, 54 T.C. 1364 (1970), affd. on this issue 487 F.2d 36 (7th Cir. 1973). Admittedly, the statute does not expressly deal with the situation where no returns have been filed previously. However, in Durovic, we were convinced that the taxpayers who had not originally filed returns should be in no preferred position because of their failure to file, and we were concerned about the administrative problems that might occur if taxpayers were allowed to file a joint return after the issuance of the notice of deficiency. Durovic v. Commissioner, 54 T.C. at 1402 . Moreover, our conclusion was reviewed and approved by the Seventh Circuit. Durovic v. Commissioner, 487 F.2d at 41-42 .
Where we have a reasonable decision that has been followed by this Court for a number of years and that has been approved by a Circuit Court, I would not lightly change our position. However, the Commissioner has chosen not to follow and apply our decision (Rev. Rul. 72-539, 1972- 2 C.B. 634 ; see Rev. Rul. 83-183, 1983- 2 C.B. 220 ), and his failure to do so may result in a capricious application of the law. We assume that, ordinarily, the agents of the Commissioner would accept and file a joint return in the circumstances of this case. It would be unfortunate to deny the taxpayers an opportunity to do so simply because the agents and counsel who represented the Commissioner in this case chose not to follow his rule. Consequently, because of the Commissioner’s failure to apply our holding in Durovic, and solely for that reason, I agree that we should no longer follow that holding.
Sterrett, Goffe, and Parker, JJ., agree with this concurring opinion. PARR, J., concurring: I agree that section 6013(b) does not apply to bar petitioner from making a joint return for each year at issue. However, I do not think it necessary to reach the issue of whether unsigned dummy returns are “returns” under section 6020(b), in order to reach this result.
The dummy returns previously filed in this case were clearly not returns filed by an individual as required by the unambiguous language of section 6013(b)(1):
In GENERAL. — Except as provided in paragraph (2), if an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse under subsection (a) and the time prescribed by law for filing the return for such taxable year has expired, such individual and his spouse may nevertheless make a joint return for such taxable year. * * * [Emphasis supplied.]
The dummy returns were filed by respondent, not by an individual taxpayer. 1
Since no individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse prior to October 12, 1983, when petitioner and his wife filed joint returns, section 6013(b) and its limitations do not apply.
WHITAKER, J., agrees with this concurring opinion. Neither were these returns prepared by respondent with petitioner’s consent and signed by him, as provided in sec. 6020(a).