# Millsap v. Commissioner

> United States Tax Court · November 22, 1988 · 91 T.C. 926

URL: https://www.frixlaw.com/law-library/cases/4486206

## Case

- **Full name:** James v. Millsap v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** November 22, 1988
- **Citations:** 91 T.C. 926; 91 T.C. No. 58; 1988 U.S. Tax Ct. LEXIS 142
- **Precedential status:** Published
- **Opinion:** Concurrence by Swift
- **Judges:** Gerber,Whitaker,Korner,Shields,Clapp,Swift,Wright,Parr,Colvin,Cohen,Nims,Ruwe,Swift,Chabot,Gerber,Whalen,Hamblen,Jacobs,Williams,Wells
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4486206

## Opinion text

SWIFT, J., concurring:
In further support of the result reached by the majority opinion, I would add that such result avoids the anomalous situation that would obtain under respondent’s position. Assuming respondent’s position regarding the effect of a substitute return were correct, only where a taxpayer receives a notice of deficiency and subsequently files a petition in the Tax Court would the taxpayer be precluded from electing joint return status. Section 6013(b)(2)(C), by its express terms, only applies where the taxpayer files a petition in the Tax Court. 1 As we previously have explained, 2 upon receiving a notice of deficiency computed on a separate return basis, a well-advised taxpayer would not file a petition in this Court but instead would pay the resulting tax assessment and file a claim for refund on a joint return basis. By not filing a petition in this Court, the limitation of section 6013(b)(2)(C) would be avoided. Nothing in section 6013 would justify the Commissioner’s disallowance of the claim for refund in that situation other than the limitation of section 6013(b)(2)(B) that the claim for refund be filed within 3 years of the due date of the original return. The result reached by the majority opinion eliminates any such disparate treatment relating to filing status that is based solely on whether a taxpayer challenges a tax deficiency by filing a petition in this Court or by paying the deficiency and filing a claim for refund. I discern no reason why the former taxpayer should be limited to separate return filing status, while the latter taxpayer is allowed the benefit of joint return filing status.
On another matter, the majority opinion (p. 935) rejects out of hand an administrative policy that this and other courts have frequently recognized and that may still be viable in other situations. I would expressly limit our rejection of that administrative policy to the particular joint return issue before us.
I also would clarify that our Memorandum Opinion in Smalldridge v. Commissioner, T.C. Memo. 1984-434 , did not address the effect of section 6020(b) upon the joint return issue addressed therein. In affirming the result reached in our Memorandum Opinion in Smalldridge, the 10th Circuit on its own initiative relied on section 6020(b).
CHABOT and GERBER, JJ., agree with this concurring opinion. Sec. 6013(b)(2)(C) provides in relevant part as follows:
(2) Limitations for making of election. — The election provided for in paragraph (1) may not be made—
* * * * * * St!
(C) after there has been mailed to either spouse, with respect to such taxable year, a notice of deficiency under section 6212, if the spouse, as to such notice, files a petition with the Tax Court within the time prescribed in section 6213;
See Smalldridge v. Commissioner, T.C. Memo. 1984-434 , n. 5 ( 48 T.C.M. 882 , 883 n. 5; 53 P-H Memo T.C. par. 84,434, at 84-1747 n. 5); Rhoades v. Commissioner, T.C. Memo. 1983-608 , n. 2 ( 46 T.C.M. 1562 , 1563 n. 2; 52 P-H Memo T.C. par. 83,608, at 2462-83 n. 2).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4486206. Public record. Not legal advice.