Seaview Trading, LLC, Agk Inve v. Cir ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAVIEW TRADING, LLC, AGK No. 20-72416
INVESTMENTS, LLC, TAX
MATTERS PARTNER, Tax Ct. No.
Petitioner-Appellant, 1837-11
v.
OPINION
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Argued and Submitted En Banc December 13, 2022
Pasadena, California
Filed March 10, 2023
Before: Mary H. Murguia, Chief Judge, and Ronald M.
Gould, Morgan Christen, Paul J. Watford, Mark J. Bennett,
Danielle J. Forrest, Patrick J. Bumatay, Jennifer Sung,
Holly A. Thomas, Salvador Mendoza, Jr., and Roopali H.
Desai, Circuit Judges.
2 SEAVIEW TRADING, LLC V.CIR
Opinion by Judge Watford;
Dissent by Judge Bumatay
SUMMARY *
Tax
Affirming the Tax Court’s decision concluding that the
Internal Revenue Service’s notice of final partnership
administrative adjustment was timely, the en banc court held
that neither Seaview Trading LLC’s faxing a copy of their
delinquent 2001 tax return to an IRS revenue agent in 2005,
nor mailing a copy to an IRS attorney in 2007, qualified as a
“filing” of the partnership’s return, and therefore the statute
of limitations did not bar the IRS’s readjustment of the
partnership’s tax liability.
In July 2005, an IRS revenue agent informed Seaview
that the agency had no record of receiving the partnership’s
return for the 2001 tax year. The revenue agent asked
Seaview to send him retained copies of any 2001 return that
Seaview claimed to have filed as well as proof of
mailing. Seaview’s accountant complied with this request in
September 2005 by faxing a copy of its 2001 Form 1065 to
the revenue agent’s office in South Dakota, along with a
certified mail receipt for an envelope that had been mailed
to the Ogden Service Center in July 2002. Seaview initially
claimed that it included its 2001 partnership return in that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SEAVIEW TRADING, LLC V. CIR 3
envelope, which contained the tax return of another related
entity, but Seaview conceded on appeal that it could not
prove that the IRS received its 2001 return as part of that
mailing. In July 2007, after the IRS commenced an audit of
Seaview, Seaview’s counsel mailed the same copy of its
2001 return to the office of an IRS attorney in
Minnesota. Neither the IRS revenue agent in South Dakota
nor the IRS attorney in Minnesota forwarded the copies of
Seaview’s 2001 partnership return to the relevant Service
Center in Ogden, Utah, for processing. Nor did Seaview
itself forward copies of its return to the Ogden Service
Center at that time.
In October 2010, the IRS issued a notice of final
partnership administrative adjustment concerning Seaview’s
2001 return, in which it disallowed the $35.5 million loss
Seaview had claimed. Through its tax matters partner,
Seaview filed a petition in the United States Tax Court
challenging the agency’s adjustment. Seaview conceded
that it was not entitled to claim the $35.5 million loss, but it
argued that the IRS’s disallowance of the loss was untimely.
26 U.S.C. § 6230(i) (2000), which was applicable during
the period in question, provided that a partnership’s return
“shall be filed . . . at such time, in such manner, and at such
place as may be prescribed in regulations.” The
implementing regulations, 26 C.F.R. § 1.6031(a)-
1(e)(2001), in turn, provided that “[t]he return of a
partnership must be filed with the service center prescribed
in the relevant IRS revenue procedure, publication, form, or
instructions to the form” and that “[t]he return of a
partnership must be filed on or before the fifteenth day of the
fourth month following the close of the taxable year of the
partnership.” The Tax Court held that Seaview never
“filed” its 2001 return because it failed to send the return to
4 SEAVIEW TRADING, LLC V.CIR
the designated place for filing under Treasury Regulation §
1.6031(a)-1(e)(1) )—namely, the IRS’s Ogden Service
Center. The en banc court agreed.
The en banc court explained that Seaview did not
meticulously comply with the regulation’s place-for-filing
requirement because neither the IRS revenue agent nor the
IRS attorney to whom Seaview sent copies of its 2001 return
qualified as a designated place for filing. And at no point
was Seaview’s return ever forwarded to the designated place
for filing at the Ogden Service Center. The en banc court
concluded that because Seaview did not meticulously
comply with the regulation’s place-for-filing requirement, it
was not entitled to claim the benefit of the three-year
limitations period. Rather, having never properly filed its
return, Seaview was instead subject to 26 U.S.C. §
6229(c)(3) (2000), which allows taxes attributable to
partnership items to be assessed “at any time.”
The en banc court wrote that its conclusion was
consistent with cases from other circuits and a long line of
Tax Court decisions. The en banc court also rejected
Seaview’s argument that the regulation’s place-for-filing
requirement applies only to returns that are timely filed—not
to those that are filed late. The en banc court additionally
rejected Seaview’s contention that its position was supported
by the IRS’s historical interpretation and practice, as
evidenced by agency documents.
Dissenting, Judge Bumatay wrote that because the IRS’s
current position was inconsistent with the Tax Code, its
regulations, and its own guidances, he would have reversed
the Tax Court’s decision. Judge Bumatay explained that for
over 20 years, the IRS has told taxpayers that they can file
late or untimely tax returns with requesting IRS officials, and
SEAVIEW TRADING, LLC V. CIR 5
has assured taxpayers it will accept all delinquent returns
submitted by a taxpayer at the request of a Service
representative. The IRS has also encouraged taxpayers to
file their delinquent returns directly with the revenue officer
instead of mailing them to the appropriate IRS Service
Center.
Judge Bumatay observed that the IRS had now
backtracked on its public statements, and as a result, any
taxpayers who filed their delinquent tax returns by sending
them directly to requesting IRS officials may find that their
returns were never deemed filed and, even worse, they may
be liable to the IRS forever. In Judge Bumatay’s view, the
IRS’s public guidances about filing delinquent tax returns
with requesting officials adhered to the Tax Code and IRS
regulations. Under the plain meaning of the Tax Code,
Judge Bumatay would hold that a late partnership tax return
is “filed” for statute-of-limitations purposes when (1) an IRS
representative authorized to obtain and receive delinquent
returns informs a partnership that a tax return is missing and
requests that tax return, (2) the partnership responds by
giving the IRS representative the tax return in the manner
requested, and (3) the IRS representative receives the tax
return.
6 SEAVIEW TRADING, LLC V.CIR
COUNSEL
Lisa S. Blatt (argued), Sarah M. Harris, J. Matthew Rice,
Kimberly Broecker, and Harrison L. Marino, Williams &
Connolly LLP, Washington, D.C.; David W. Foster and
Armando Gomez, Skadden Arps Slate Meagher & Flom
LLP, Washington, D.C.; for Petitioner-Appellant.
Francesca Ugolini (argued), Arthur T. Catterall, and
Anthony T. Sheehan, Attorneys, Tax Division; David A.
Hubbert, Acting Assistant Attorney General; United States
Department of Justice; Washington, D.C.; William J.
Wilkins, Chief Counsel; Internal Revenue Service;
Washington, D.C.; for Respondent-Appellee.
Professor T. Keith Fogg and Janice Rovner Feldman, Tax
Clinic at the Legal Services Center of Harvard Law School,
Jamaica Plain, Massachusetts, for Amici Curiae the Center
for Taxpayer Rights and the Federal Tax Clinic at the Legal
Services Center of Harvard Law School.
SEAVIEW TRADING, LLC V. CIR 7
OPINION
WATFORD, Circuit Judge:
The Internal Revenue Service (IRS) generally has three
years from the date a taxpayer files a tax return to assess any
taxes that are owed for that year. In this case, we must decide
whether a partnership “filed” its 2001 tax return by faxing a
copy of that return to an IRS revenue agent in 2005 or by
mailing a copy to an IRS attorney in 2007. If either of those
actions qualified as a “filing” of the partnership’s return, the
statute of limitations would bar the IRS’s decision, more
than three years later, to disallow a large loss the partnership
had claimed. We conclude that neither action constituted a
filing of the return and that the IRS’s disallowance of the loss
was therefore timely.
I
During the relevant period, Seaview Trading, LLC, was
a company classified as a partnership for federal income tax
purposes with its principal place of business in California.
Seaview Trading, LLC v. Commissioner, 858 F.3d 1281,
1283 (9th Cir. 2017). Seaview claimed a $35.5 million loss
arising from a tax-shelter transaction on its 2001 partnership
return, called a Form 1065.
A provision of the Internal Revenue Code (applicable at
the time but since repealed) stated that a partnership’s return
“shall be filed . . . at such time, in such manner, and at such
place as may be prescribed in regulations.” 26 U.S.C.
8 SEAVIEW TRADING, LLC V.CIR
§ 6230(i) (2000). 1 The Treasury Department implemented
this provision by issuing regulations which, as relevant here,
provided clear instructions specifying the time and place for
filing partnership returns:
(e) Procedural requirements—(1) Place for
filing. The return of a partnership must be
filed with the service center prescribed in the
relevant IRS revenue procedure, publication,
form, or instructions to the form (see
§ 601.601(d)(2)).
(2) Time for filing. The return of a
partnership must be filed on or before the
fifteenth day of the fourth month following
the close of the taxable year of the
partnership.
26 C.F.R. § 1.6031(a)-1(e) (2001). The 2001 Form 1065
instructions stated that a partnership with its principal place
of business in California had to file its return with the
Service Center in Ogden, Utah. See IRS, Instructions for
Form 1065 at 4 (2001). Thus, to file its 2001 return on time,
Seaview was required to send its return to the Ogden Service
Center by April 15, 2002.
In July 2005, an IRS revenue agent informed Seaview
that the agency had no record of receiving the partnership’s
return for the 2001 tax year. The revenue agent asked
Seaview to send him retained copies of any 2001 return that
Seaview claimed to have filed as well as proof of mailing.
1
The statutory provisions applicable here were repealed by the
Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 1101(a), 129 Stat.
584, 625.
SEAVIEW TRADING, LLC V. CIR 9
Seaview’s accountant complied with this request in
September 2005 by faxing a copy of its 2001 Form 1065 to
the revenue agent’s office in South Dakota, along with a
certified mail receipt for an envelope that had been mailed
to the Ogden Service Center in July 2002. Seaview initially
claimed that it included its 2001 partnership return in that
envelope, which contained the tax return of another related
entity, but Seaview concedes on appeal that it cannot prove
the IRS received its 2001 return as part of that mailing.
In July 2007, after the IRS commenced an audit of
Seaview, Seaview’s counsel mailed the same copy of its
2001 return to the office of an IRS attorney in Minnesota.
Seaview’s counsel wrote: “Pursuant to our prior
conversation, enclosed is a copy of the Seaview Trading,
LLC’s retained copy of its 2001 Form 1065.”
Neither the IRS revenue agent in South Dakota nor the
IRS attorney in Minnesota forwarded the copies of
Seaview’s 2001 partnership return to the Ogden Service
Center for processing. Nor did Seaview itself forward copies
of its return to the Ogden Service Center at that time.
In October 2010, the IRS issued a notice of final
partnership administrative adjustment concerning Seaview’s
2001 return, in which it disallowed the $35.5 million loss
Seaview had claimed. Through its tax matters partner,
Seaview filed a petition in the United States Tax Court
challenging the agency’s adjustment. Seaview conceded
that it was not entitled to claim the $35.5 million loss, but it
argued that the IRS’s disallowance of the loss was untimely.
The applicable statute of limitations set the deadline for
assessing taxes owed as “3 years after . . . the date on which
the partnership return for such taxable year was filed.” 26
U.S.C. § 6229(a)(1) (2000) (emphasis added). As the statute
10 SEAVIEW TRADING, LLC V.CIR
makes clear, the limitations period begins to run only when
a return has been “filed,” regardless of when that filing
occurs. But if a partnership never files a return for a taxable
year, “any tax attributable to a partnership item (or affected
item) arising in such year may be assessed at any time.”
§ 6229(c)(3).
Before the Tax Court, Seaview did not argue that it had
filed its 2001 return on time by sending it to the IRS’s Ogden
Service Center in 2002. Instead, Seaview claimed it had
filed a delinquent return either in September 2005, when it
faxed a retained copy of the return to the IRS revenue agent,
or in July 2007, when it mailed the same copy to the IRS
attorney. If either of those actions constituted a “filing,” the
statute of limitations would have expired at the latest by July
2010, rendering the IRS’s October 2010 administrative
adjustment untimely.
The Tax Court rejected Seaview’s argument. It held that
Seaview never “filed” its 2001 return because it failed to
send the return to the designated place for filing under
Treasury Regulation § 1.6031(a)-1(e)(1)—namely, the
IRS’s Ogden Service Center. Citing Winnett v.
Commissioner, 96 T.C. 802 (1991), the court noted that “if a
taxpayer submits a return to the wrong place but the return
is later forwarded to [the] designated place for filing, the
limitations period commences when the return is received at
the designated place for filing.” Seaview could not avail
itself of that rule, however, because “[n]either of the
purported returns was forwarded to the Ogden service
center.” The court further held that, even if Seaview had sent
its returns to the designated place for filing, the copies of the
Form 1065 it submitted did not qualify as “returns.”
SEAVIEW TRADING, LLC V. CIR 11
Over the dissent of Judge Bade, a three-judge panel of
our court reversed the decision of the Tax Court and held
that the IRS’s administrative adjustment was barred by the
statute of limitations. Seaview Trading, LLC v.
Commissioner, 34 F.4th 666 (9th Cir. 2022). A majority of
the non-recused active judges subsequently voted to rehear
the case en banc. 54 F.4th 608 (9th Cir. 2022).
II
The Supreme Court has held that “limitations statutes
barring the collection of taxes otherwise due and unpaid are
strictly construed in favor of the Government.” Badaracco
v. Commissioner, 464 U.S. 386, 392 (1984) (quoting Lucia
v. United States, 474 F.2d 565, 570 (5th Cir. 1973) (en
banc)). That means there must be “meticulous compliance
by the taxpayer with all named conditions in order to secure
the benefit of the limitation.” Lucas v. Pilliod Lumber Co.,
281 U.S. 245, 249 (1930).
Here, one of the “named conditions” with which
Seaview had to comply to secure the benefit of the
limitations period was the requirement that a partnership file
its return “at such place as may be prescribed in regulations.”
26 U.S.C. § 6230(i) (2000). The governing regulations
provided that “[t]he return of a partnership must be filed with
the service center prescribed in the relevant IRS revenue
procedure, publication, form, or instructions to the form,”
which in Seaview’s case was the Service Center in Ogden,
Utah. 26 C.F.R. § 1.6031(a)-1(e)(1) (2001); see also IRS,
Instructions for Form 1065 at 4 (2001). Seaview did not
meticulously comply with the regulation’s place-for-filing
requirement because neither the IRS revenue agent nor the
IRS attorney to whom Seaview sent copies of its 2001 return
qualified as a designated place for filing. And at no point
12 SEAVIEW TRADING, LLC V.CIR
was Seaview’s return ever forwarded to the designated place
for filing. 2
Because Seaview did not meticulously comply with the
regulation’s place-for-filing requirement, it is not entitled to
claim the benefit of the three-year limitations period.
Having never properly filed its return, Seaview is instead
subject to the provision allowing taxes attributable to
partnership items to be assessed “at any time.” 26 U.S.C.
§ 6229(c)(3) (2000).
The conclusion we reach here is consistent with cases
from other circuits and a long line of Tax Court decisions.
Among the circuit court decisions, Allnutt v. Commissioner,
523 F.3d 406 (4th Cir. 2008), is perhaps most on point.
There, the court held that a taxpayer did not “file” delinquent
returns when he hand delivered them to the designated place
for filing but gave the returns to a person at that location who
was not authorized to accept hand-carried returns. Id. at 407,
413. The returns eventually made their way from that person
to a person authorized to accept hand-carried returns, and at
2
The IRS informs us that under a different regulation, which as relevant
here has remained unchanged since 2005, Seaview also had the option
of filing by hand carrying its return to “any person assigned the
responsibility to receive hand-carried returns in the local Internal
Revenue Service office as provided in paragraph (a) of this section.” 26
C.F.R. § 1.6091-2(d)(1). Paragraph (a) refers to “the local Internal
Revenue Service office that serves the legal residence or principal place
of business of the person required to make the return.” § 1.6091-2(a)(1).
We need not decide whether the IRS revenue agent or the IRS attorney
to whom Seaview sent its return was “assigned the responsibility to
receive hand-carried returns,” or whether faxing or mailing a return
qualifies as “hand carrying” (see § 301.6091-1(c)), because neither the
agent nor the attorney worked in Seaview’s local IRS office in
California.
SEAVIEW TRADING, LLC V. CIR 13
that point the returns were deemed filed. Id. at 414.
Measured from that later date, however, the IRS’s
assessment notice was timely. Id.; see also Coffey v.
Commissioner, 987 F.3d 808, 812–15 (8th Cir. 2021);
O’Bryan Bros., Inc. v. Commissioner, 127 F.2d 645, 647
(6th Cir. 1942); W.H. Hill Co. v. Commissioner, 64 F.2d 506,
507–08 (6th Cir. 1933).
The Tax Court has also repeatedly held that a return is
not properly “filed” unless it is submitted to, or eventually
received by, the person or office specified in the applicable
regulations as the designated place for filing. 3 Although Tax
Court decisions do not bind us, we have consistently
recognized that court’s unique expertise in tax matters, see,
e.g., Gragg v. United States, 831 F.3d 1189, 1192 (9th Cir.
2016), and here we find its decisions persuasive.
In short, Seaview did not deliver its 2001 partnership
return to the designated place for filing, and the return was
never forwarded to that location. As a result, the return was
never properly filed, and the three-year statute of limitations
never began to run. 4
3
See, e.g., Smyth v. Commissioner, 113 T.C.M. (CCH) 1132, 2017 WL
504711, at *3 (2017); Friedmann v. Commissioner, 82 T.C.M. (CCH)
381, 2001 WL 883222, at *2–3, 6–7 (2001), aff’d, 80 F. App’x 285 (3d
Cir. 2003); Turco v. Commissioner, 74 T.C.M. (CCH) 1437, 1997 WL
786967, at *1–2 (1997); Green v. Commissioner, 65 T.C.M. (CCH)
2347, 1993 WL 101371, at *2, 7 (1993), aff’d, 33 F.3d 1378 (5th Cir.
1994) (per curiam) (unpublished); Metals Refining Ltd. v.
Commissioner, 65 T.C.M. (CCH) 2171, 1993 WL 89189, at *1–3, 6–7
(1993); Winnett, 96 T.C. at 807–09.
4
Because Seaview’s failure to file its 2001 return is dispositive of this
appeal, we need not decide whether the Form 1065 copies that Seaview
sent in 2005 and 2007 qualify as “returns.”
14 SEAVIEW TRADING, LLC V.CIR
III
Seaview argues that it was not required to meticulously
comply with Treasury Regulation § 1.6031(a)-1(e)’s place-
for-filing requirement because that requirement does not
apply here at all. According to Seaview, the regulation’s
place-for-filing requirement applies only to returns that are
timely filed—not to those that are filed late. Thus, under
Seaview’s reading of the regulation, if Seaview had
attempted to file its 2001 return on time, it would have been
required to send its return to the Ogden Service Center, as
§ 1.6031(a)-1(e)(1) dictates. Seaview nevertheless asserts
that, because its 2005 fax and 2007 mailing of the return
occurred after the filing deadline, it was excused from
complying with the place-for-filing requirement.
We do not think § 1.6031(a)-1(e) can be read in the
manner Seaview urges. The regulation makes no distinction
between returns that are filed on time and those that are filed
late, and its place-for-filing requirement contains no carve-
out for delinquent returns. Although it is true, as Seaview
notes, that the regulation prescribes both place-for-filing and
time-for-filing requirements, those requirements appear in
separate provisions. As Judge Bade observed in her dissent
from the three-judge panel decision, nothing in the text of
the regulation indicates that compliance with the place-for-
filing requirement is conditioned upon compliance with the
time-for-filing requirement, such that filing at the designated
place somehow becomes optional whenever a taxpayer files
its return late. Seaview Trading, 34 F.4th at 682–83 (Bade,
J., dissenting).
Seaview also contends that its position is supported by
the IRS’s historical interpretation and practice, as evidenced
by three agency documents. According to Seaview, these
SEAVIEW TRADING, LLC V. CIR 15
documents support the conclusion that the 2005 fax and the
2007 mailing qualify as “filings” of its return. We disagree.
The first document, a 1999 advice memorandum from an
Acting Assistant Chief Counsel, analyzed the regulation
mentioned earlier, 26 C.F.R. § 1.6091-2, which at the time
provided that taxpayers could file a return either “by mailing
it to the appropriate Service Center or by hand carrying the
return to the District Director of the internal revenue district
in which they live.” IRS, Chief Counsel Advice
No. 199933039 at 3 (Aug. 20, 1999),
https://www.irs.gov/pub/irs-sca/9933039.pdf. Now defunct,
the District Director’s office was responsible for the
administration of IRS operations within a given tax district.
The memorandum addressed whether revenue officers could
accept hand-carried returns for filing as delegees of the
District Director. The memorandum concluded that they
could and that permitting them to do so was “consistent with
the regulations as the revenue officers are acting on behalf
of, and under the authority of, the District Director.” Id.That conclusion provides no support for Seaview’s
contention that an IRS revenue agent and IRS attorney
located outside its local service office could accept its 2001
return for filing. See n.2, supra.
Seaview makes much of the advice memorandum’s
observation that “[t]he Code, regulations, and instructions of
the Form 1040 do not make any reference to delinquent
returns.” Chief Counsel Advice No. 199933039 at 3 n.1. In
context, however, that statement does not support Seaview’s
argument that the regulations are “silent” as to the
designated place for filing delinquent returns. The
memorandum was discussing whether revenue officers
could require taxpayers to file delinquent returns by hand
delivering them to a revenue officer in their local District
16 SEAVIEW TRADING, LLC V.CIR
Director’s office, rather than by mailing them to the
appropriate Service Center. The memorandum concluded
that “[s]ince the Code and regulations do not differentiate
between timely filed and delinquent returns, taxpayers may
file their delinquent returns either with the applicable
Service Center or with a revenue officer.” Id. at 4 n.2. We
agree that the Tax Code and regulations do not differentiate
between timely and delinquent returns—both must be filed
in accordance with the prescribed place-for-filing
requirements. Here, Seaview failed to file in accordance
with those requirements for the reasons discussed above.
The second document, the 2005 Internal Revenue
Manual, states that examiners should advise taxpayers to
deliver delinquent returns “promptly to the examiner,”
Internal Revenue Manual § 4.12.1.4.2 (2005), and then
instructs IRS personnel to process the delinquent returns by
sending them “to the appropriate campus,” id. § 4.4.9.7.3.
That guidance is consistent with the Tax Code and
regulations, which require returns to be filed at the
appropriate Service Center. But even assuming the revenue
agent in Seaview’s case was required to follow this guidance
and failed to do so, that fact would not alter our analysis
because the “Internal Revenue Manual does not have the
force of law and does not confer rights on taxpayers.”
Fargo v. Commissioner, 447 F.3d 706, 713 (9th Cir. 2006).
The last document, a 2006 policy statement, provides
that absent an indication of fraud, “[a]ll delinquent returns
submitted by a taxpayer, whether upon his/her own initiative
or at the request of a Service representative, will be
accepted.” IRS Policy Statement 5-133, Delinquent
Returns—Enforcement of Filing Requirements (Aug. 4,
2006), https://www.irs.gov/irm/part1/irm_01-002-001#idm
140099600018288. That statement does nothing more than
SEAVIEW TRADING, LLC V. CIR 17
confirm that delinquent returns submitted by taxpayers will
be “accepted” rather than rejected on the ground they are
late. It does not purport to override the regulatory
requirements that otherwise govern the manner in which,
and the place at which, returns must be filed.
Seaview’s reliance on Dingman v. Commissioner, 101
T.C.M. (CCH) 1562, 2011 WL 2150027 (2011), is
misplaced. There, Dingman had failed to file his income tax
returns for several tax years. Id. at *1. During an IRS
criminal investigation against him, he delivered to IRS
investigators original returns for the missing years, along
with checks to pay the corresponding tax liabilities. Id. The
IRS posted those payments to Dingman’s tax accounts. Id.More than three years later, the IRS attempted to assess
additional taxes against Dingman for fraudulent failure to
file returns, and Dingman challenged the agency’s
assessment as time barred. Id. at *1–2.
The Tax Court held that the IRS’s assessment was
untimely because Dingman had “filed” his returns—and the
statute of limitations had therefore started to run—on the
date the checks were credited to Dingman’s accounts. The
crediting of those payments, the court concluded, was
evidence that his returns had ultimately reached “an IRS
office that had the authority to process” them. Id. at *9; see
also id. at *12–13.
The court did not, however, hold that Dingman’s returns
were “filed” when Dingman delivered them to the IRS
investigators. Id. at *1, 13. Instead, consistent with Tax
Court precedent, the court reasoned that when a taxpayer
submits a return to someone who is not authorized to accept
it for filing, and the return is subsequently forwarded to the
correct IRS office, the limitations period commences on that
18 SEAVIEW TRADING, LLC V.CIR
later date. Id. at *12 (citing Winnett, 96 T.C. at 808). The
Tax Court rejected the IRS’s argument that Dingman had
failed to “meticulously comply” with all named conditions
because, in the wake of an agency-wide reorganization, the
regulations in question directed taxpayers to file their returns
in outdated places with non-existent recipients. Id. at *8–9,
10–11.
Here, by contrast, the regulations in place in 2005 and
2007 offered effective guidance regarding the place for filing
returns—Seaview simply failed to comply with the
regulation’s requirements. And, unlike in Dingman,
Seaview’s returns were never received at the correct location
and processed there.
* * *
Seaview did not “file” its 2001 partnership return, either
when it faxed a copy of the return to the IRS revenue agent
or when it mailed a copy to the IRS attorney. We affirm the
Tax Court’s decision holding that the IRS’s notice of final
partnership administrative adjustment was timely.
AFFIRMED.
SEAVIEW TRADING, LLC V. CIR 19
BUMATAY, Circuit Judge, dissenting:
Today, our court throws our tax system into disarray.
Now taxpayers can no longer trust what the IRS has told
them about how to file delinquent tax returns. For over 20
years, the IRS has told taxpayers they can file late or
untimely tax returns with requesting IRS officials. The IRS
has assured taxpayers it will “accept[]” “[a]ll delinquent
returns submitted by a taxpayer . . . at the request of a
Service representative.” IRS Manual § 1.2.1.6.18(1) (2006).
And the IRS has encouraged taxpayers “to file [their]
delinquent return[s] directly with the revenue officer instead
of mailing [them] to the appropriate [IRS] Service Center.”
IRS Office of Chief Counsel, Chief Counsel Advice No.
199933039, Filing Delinquent Returns Directly With
Revenue Officers (Aug. 20, 1999), at 4. But the IRS now
backtracks on its public statements. The IRS urges our court
to hold that a delinquent return is only “filed” under the Tax
Code if it is mailed to an IRS Service Center. And
unfortunately, our court acquiesces. As a result, any
taxpayers who filed their delinquent tax returns by sending
them directly to requesting IRS officials may find that their
returns were never deemed filed and, even worse, they may
be liable to the IRS forever.
What makes our court’s decision most perplexing is that
the IRS’s public guidances about filing delinquent tax
returns with requesting officials adheres to the Tax Code and
IRS regulations. The Tax Code only requires filing a return
as the IRS “may prescribe in regulations.” 26 U.S.C.
§ 6230(i) (repealed 2015) (emphasis added). But here, the
IRS has promulgated no regulation on how partnerships
must file “delinquent” returns. In such cases, we follow the
plain meaning of “filing.” And, as the IRS has previously
20 SEAVIEW TRADING, LLC V.CIR
concluded, sending a delinquent return to a requesting IRS
official fits with the plain meaning of the term. So the IRS’s
public statements about filing delinquent returns with an IRS
representative follows the law, and we should have held the
IRS to its promises.
Instead, our court lets the IRS “speak[] out of both sides
of its mouth.” Bittner v. United States, No. 21-1195, slip op.
at 10 n.5 (U.S. Feb. 28, 2023). While publicly encouraging
filing with individual IRS representatives, our court says that
those same representatives can arbitrarily withhold
acceptance of a delinquent return by not forwarding it to an
IRS Service Center. All this after the IRS representative
directly requested the return from the taxpayer and the
taxpayer complied with the request. We thus grant a
disturbing unilateral power to individual government
employees to determine whether a return is “filed.” Nothing
in the law supports this conclusion.
Here, an IRS revenue agent contacted Seaview Trading,
LLC, a California-based partnership, in 2005 about a
delinquent return and asked if it had filed a tax return for the
2001 tax year. The IRS agent also requested that the return
be sent directly to him. Seaview thought it had sent its 2001
tax return on time. But it complied with the request, mailing
the tax return directly to the agent. Years went by. Then, in
2010, the IRS used the 2001 tax return sent to the agent to
audit Seaview and recalculate the partnership’s tax liability.
The IRS now says that, after all that time, Seaview still owes
it money. But according to Seaview, it’s too late—the three-
year statute of limitations has long since run from when the
partnership sent the IRS agent its return in 2005.
Our court sides with the IRS because the IRS agent
didn’t forward Seaview’s return to the IRS Service Center in
SEAVIEW TRADING, LLC V. CIR 21
Ogden, Utah. Instead, we conclude that Seaview should
have also mailed the delinquent return to Ogden. Because it
didn’t, Seaview’s fate was sealed by one IRS official’s
unilateral decision to keep the return to himself.
But we are nation of laws, not bureaucrats. It’s the plain
meaning of the Tax Code that governs this case—not the
whims of some IRS agent. While the majority may feel that
tax liabilities may be easily afforded—or even deserved—
by a multi-million-dollar partnership like Seaview, the
consequences of our court’s decision will fall on countless
taxpayers without the legal resources or means to defend
themselves against the arbitrary power of individual IRS
officials.
Because our conclusion defies the Tax Code and
common sense, I respectfully dissent.
I.
When is a delinquent tax return “filed” to trigger the
statute of limitations? The IRS offers two conflicting
answers to this question—a public position and a litigation
position. In its public statements and internal guidances, the
IRS says that taxpayers can file a late return by following the
directions of IRS officials who request it. But in briefs and
oral argument, the IRS contends that a taxpayer may file an
untimely return only by mailing it to the agency’s Service
Center. Under the IRS’s litigation position, a tax return is
filed only if sent to a requesting IRS official and the IRS
official takes the purely discretionary step to forward it to
the Service Center. Because no regulation compels the
IRS’s litigation position, I would follow the IRS’s common
sense, public position.
22 SEAVIEW TRADING, LLC V.CIR
Based on the plain meaning of the Tax Code, I would
hold that a late partnership tax return is “filed” for statute-
of-limitations purposes when (1) an IRS representative
authorized to obtain and receive delinquent returns informs
a partnership that a tax return is missing and requests that tax
return, (2) the partnership responds by giving the IRS
representative the tax return in the manner requested, and (3)
the IRS representative receives the tax return.
A.
The IRS generally has three years after “the date on
which the partnership return for [a] taxable year was filed”
to determine a partnership’s tax liability. See 26 U.S.C.
§ 6229(a) (repealed 2015). But if the partnership files no
return, the statute-of-limitations clock never starts. Instead,
“in the case of a failure by a partnership to file a return for
any taxable year, any tax attributable to a partnership item .
. . may be assessed at any time.” Id. § 6229(c)(3). So
whether the statute of limitations for tax liabilities is
triggered depends on whether a partnership’s tax return is
“filed.”
The Tax Code doesn’t define when a tax return is “filed.”
See Coffey v. Comm’r, 987 F.3d 808, 812 (8th Cir. 2021)
(“The Internal Revenue Code and the IRS regulations do not
define the terms ‘file’ or ‘filed.’”). Rather, the Tax Code
states that partnership returns “shall be filed or made at such
time, in such manner, and at such place as may be prescribed
in regulations.” 26 U.S.C. § 6230(i) (repealed 2015). Thus,
the Tax Code only mandates a certain method for filing
returns when the IRS promulgates specific rules for filing.
But since the IRS’s authority to prescribe filing regulations
is permissive, IRS regulations don’t necessarily cover the
field for filing returns. In other words, because the Tax Code
SEAVIEW TRADING, LLC V. CIR 23
specifies that the IRS may prescribe regulations, the IRS may
also not prescribe any regulations. And when there’s a
regulatory gap, the plain meaning of “filing” must govern.
Here, we have a regulatory gap. No IRS regulation
expressly provides for the filing of delinquent partnership
returns. The IRS and the majority maintain that 26 C.F.R.
§ 1.6031(a)-1(e) governs the filing of all partnership
returns—both timely and delinquent. But that’s inconsistent
with the text of the regulation. The regulation provides:
(e) Procedural requirements—
(1) Place for filing. The return of a
partnership must be filed with the service
center prescribed in the relevant IRS
revenue procedure, publication, form, or
instructions to the form (see §
601.601(d)(2)).
(2) Time for filing. The return of a
partnership must be filed on or before the
fifteenth day of the fourth month
following the close of the taxable year of
the partnership.
26 C.F.R. § 1.6031(a)-1(e). Tax forms show that the
appropriate “service center” here is in Ogden, Utah. IRS,
Instructions for Form 1065 at 4.
We know that § 1.6031(a)-1(e) doesn’t dictate when
partnerships are to file delinquent returns for at least four
reasons. First, the regulation says nothing about delinquent
returns. And second, it would be nonsensical to read the
regulation to apply to both timely and delinquent returns.
It’s easy to show why. Let’s pretend the majority is correct
24 SEAVIEW TRADING, LLC V.CIR
and assume that the regulation applies to both “timely” and
“delinquent” returns. If that were true, then the regulation
could be read as follows:
(1) Place for filing. The [timely or
delinquent] return of a partnership must
be filed with the service center prescribed
in the relevant IRS revenue procedure,
publication, form, or instructions to the
form (see § 601.601(d)(2)).
(2) Time for filing. The [timely or
delinquent] return of a partnership must
be filed on or before the fifteenth day of
the fourth month following the close of
the taxable year of the partnership.
It’s obvious where the majority’s interpretation goes
awry. The regulation cannot apply to both timely and
delinquent returns because it would render subsection (2) a
logical impossibility. Simply, a taxpayer can never file a
delinquent or untimely return “on or before the fifteenth day
of the fourth month following the close of the taxable year.”
Id. Accepting the majority’s interpretation creates a
hypothetical reality in which it’s possible to file an untimely
return on time. Thus, the majority treats a tax return like
Schrödinger’s Cat: it embraces the theoretical impossibility
that a return could be simultaneously timely and untimely.
But a tax return is not Schrödinger’s Cat. And we have no
business inserting paradoxes into an already complicated tax
system. Because a taxpayer—by definition—can never file
an untimely return by the April 15 deadline, § 1.6031(a)-1(e)
must only apply to timely returns.
SEAVIEW TRADING, LLC V. CIR 25
Third, when the IRS wants a regulation to apply to
“delinquent returns,” it knows how to do so. See 26 C.F.R.
§ 601.104(c)(4) (imposing penalties for returns not filed
“within the prescribed time” and setting a $10 penalty for
each day “the return is delinquent”); 26 C.F.R. § 301.7502-
1(f) (discussing claims for credit or refund relating to “late
filed return[s]”); see also 26 U.S.C. § 6611(b)(3) (setting the
rate of interest for “[l]ate returns”).
Finally, as the IRS itself noted, § 1.6031(a)-1(e) doesn’t
set the exclusive method for filing partnership taxes. The
Tax Code and IRS regulations permit partnerships to hand-
carry returns to certain IRS offices. See 26 U.S.C.
§ 6091(b)(4) (allowing filing by hand-carrying to an
appropriate internal revenue district); 26 C.F.R. § 1.6091-
2(d)(1) (allowing filing by hand-carrying to “any person
assigned the responsibility to receive hand-carried returns in
the local Internal Revenue Service office”). So an IRS
Service Center isn’t the only place a partnership can file its
returns—even when timely.
Even taking the IRS’s position under its own terms, its
view on filing procedures doesn’t make sense. The IRS
contends that § 1.6031(a)-1(e) is the only way to file
partnership returns by mail and that taxpayers must
meticulously comply with its requirements. But, in the next
breath, the IRS says it will still accept returns sent to
requesting IRS officials if and only if the IRS official also
happens to forward it to the Service Center. Yet § 1.6031(a)-
1(e) provides no such exception to its supposed mandatory
requirement of mailing to a Service Center. If the IRS wants
to make up steps for filing late returns, it should do so
through regulation—not litigation. And our court should
have refrained from endorsing this rulemaking by appellate
argument.
26 SEAVIEW TRADING, LLC V.CIR
And so nothing in the Tax Code or IRS regulations
supports the majority’s acquiescence to the IRS’s view about
the requirements for filing a delinquent return. While I agree
with the majority that taxpayers must comply with “all
named conditions” to benefit from the statute of limitations,
Lucas v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930), that
doesn’t give us license to create “named conditions.” Here,
we should have said the obvious—that the IRS regulations
are silent on how partnerships are to file late returns.
B.
Because the Tax Code and the regulations don’t define
how a delinquent partnership return is “filed,” we should
have turned to the ordinary meaning of the term. See Lang
v. Comm’r, 289 U.S. 109, 111 (1933) (“Giving the words of
the [Tax Code] their natural and ordinary meaning . . . must
be done[.]”); see also Comm’r v. Brown, 380 U.S. 563, 571
(1965) (“Generally speaking, the language in the Revenue
Act, just as in any statute, is to be given its ordinary
meaning[.]” (simplified)).
The Supreme Court confronted the ordinary meaning of
“file” in another federal statute back in 1916:
The word ‘file’ was not defined by Congress.
No definition having been given, the
etymology of the word must be considered
and ordinary meaning applied. The word
‘file’ is derived from the Latin word ‘filum,’
and relates to the ancient practice of placing
papers on a thread or wire for safe-keeping
and ready reference. Filing, it must be
observed, is not complete until the document
is delivered and received. . . . A paper is filed
SEAVIEW TRADING, LLC V. CIR 27
when it is delivered to the proper official and
by him received and filed.
United States v. Lombardo, 241 U.S. 73, 76 (1916); see
Hotel Equities Corp. v. Comm’r, 65 T.C. 528, 531 (1975)
(applying Lombardo’s definition to the Tax Code). This
definition tracks modern dictionary definitions. For
example, to “file” means “[t]o deliver an instrument . . . to
the proper officer . . . for the purpose of being kept on file by
him as a matter of record and reference in the proper place,”
Black’s Law Dictionary (5th ed. 1979), or “to place in a file”
or “to place on record, file an application,” Oxford American
Dictionary (1980).
Our court has held that “a return is ‘filed’ at the time it is
delivered to the IRS.” United States v. Hanson, 2 F.3d 942,
946 (9th Cir. 1993). In that case, we considered the meaning
of a “filing” for a fraudulent tax return charge under
26 U.S.C. § 7206. We concluded that a “filing” was
accomplished when the taxpayer personally “mailed the
forms” and the “IRS received them.” Id. We held it
irrelevant that the IRS “never fully processed” the return. Id.So, in the ordinary sense, a tax return is “filed” if delivered
to a proper IRS official and the official received the return.
Accord Heard v. Comm’r, 269 F.2d 911, 913 (3d Cir. 1959)
(“[U]nless otherwise defined by statute, filing does not occur
until the paper to be filed is delivered to, received and filed
by the proper official.”).
It’s telling that the majority relies on an inapposite, out-
of-circuit case to support its reasoning. Maj. Op. 12 (citing
Allnutt v. Comm’r, 523 F.3d 406 (4th Cir. 2008)). In that
case, the Fourth Circuit was interpreting whether a taxpayer
complied with a regulation that permits hand-carrying
returns to the IRS’s regional “district director” or
28 SEAVIEW TRADING, LLC V.CIR
administrative supervisor. Allnutt, 523 F.3d at 412 (citing
26 C.F.R. § 1.6091-2). Rather than handing the return to the
“district director,” his assignee, or even the director’s office,
the taxpayer gave the return to “an unidentified man of
unknown title that he encountered in the hallway somewhere
in the [IRS] building.” Id. at 413. The Fourth Circuit easily
concluded that the method did not meticulously comply with
the regulation. Id. But, in that case, no one questioned that
applicability of § 1.6091-2, and so the Fourth Circuit didn’t
have to interpret the plain meaning of “filed.” Here, we have
a regulatory gap—no IRS regulation squarely addresses the
filing of late partnership returns. And neither Allnutt nor the
other cases cited by the majority mirror the situation here—
where the taxpayer was following the express directions of
an IRS agent to send the late return directly to the agent.
Based on the ordinary meaning of “filing,” we should
have held that a delinquent partnership return is “filed” when
an IRS official authorized to obtain and process a delinquent
return asks a partnership for such a return, the partnership
delivers the return to the IRS official in the manner
requested, and the IRS official receives the return.
C.
IRS guidance confirms this plain-meaning approach to
“filing.” In both internal and public policies, the IRS has
repeatedly affirmed that taxpayers can file untimely returns
by sending them to requesting IRS officials. And while the
majority is right that such policies don’t have the force of
law and don’t confer rights on a taxpayer, see Fargo v.
Comm’r, 447 F.3d 706, 713 (9th Cir. 2006), that misses the
point. The point is that these policies show that the IRS
agrees, as an agency matter, that no regulation governs the
process of “filing” late returns and that it, too, follows the
SEAVIEW TRADING, LLC V. CIR 29
term’s ordinary meaning. So we should take the IRS’s
litigation position with a grain of salt.
Start with IRS Policy Statements. IRS Policy Statements
represent the “policies of the Internal Revenue Service” and
go “to all persons having a need for any of the policy
statements.” IRS Manual § 1.2.1.1 (2019). Thus, these are
policies for public consumption—meant to provide
taxpayers guidance on how the IRS views taxpayers’
obligations under the Tax Code and regulations. An IRS
Policy Statement specifically addresses “[d]elinquent
returns” and the “enforcement of filing requirements.” Id.
§ 1.2.1.6.18(1) (2006). The Statement notifies the public:
Taxpayers failing to file tax returns due will
be requested to prepare and file all such
returns except in instances where there is an
indication that the taxpayer’s failure to file
the required return or returns was willful or if
there is any other indication of fraud. All
delinquent returns submitted by a taxpayer,
whether upon his/her own initiative or at the
request of a Service representative, will be
accepted.
Id. § 1.2.1.6.18(2) (emphasis added). Thus, the IRS publicly
represents that it will “accept[]” all delinquent returns
“submitted by a taxpayer . . . at the request of a Service
representative.” Id. This view of the “enforcement of filing
requirements” is only consistent with IRS regulations if
§ 1.6031(a)-1(e) does not apply to late returns. Indeed, this
Policy Statement says nothing about a requirement that a
taxpayer must also send the return to a Service Center or that
a filing will not be “accepted” until the IRS representative
30 SEAVIEW TRADING, LLC V.CIR
decides to forward the return to a Center. The only way to
read the Statement is that taxpayers may send their returns
to a requesting IRS “representative” and trust that the return
will be filed. Id.
The IRS Manual then provides procedures to ensure that
delinquent returns are processed after receipt by an IRS
representative:
1. The IRS Manual encourages its staff to “[s]ecur[e] a
valid voluntary tax return from the taxpayer
(delinquent return).” Id. § 4.12.1.1.3 (2005).
2. The Manual instructs IRS staff to “[a]dvise the
taxpayer of the requirement to file all delinquent
returns” and “[a]dvise the taxpayer to deliver the
returns promptly to the examiner” along with an
explanation for the reason for the delay in filing. Id.
§ 4.12.1.7.2.1 (2010) (emphasis added).
3. Once obtained, the IRS examiner is instructed to
“[d]ate stamp the delinquent return when it is
received.” Id. § 4.4.9.4.7 (1999).
4. The examiner must then make a copy of the
delinquent return to maintain in the case file and
write on the original return, “DELINQUENT
RETURN SECURED BY EXAMINATION.” Id. §§
4.4.9.4.9, 4.4.9.4.10 (2012).
5. Finally, after all these steps are completed, the
examiner must mail the “delinquent return . . . to the
appropriate Campus,” i.e., the appropriate IRS
Service Center, for processing. Id. § 4.4.9.4.13
(2022).
SEAVIEW TRADING, LLC V. CIR 31
The Manual applies these procedures to partnerships and
prescribes steps to take if a partnership “fails to file a
delinquent return when requested.” Id. § 4.12.1.16.3 (2010).
In short, the IRS Manual requires IRS staff to request,
obtain, and accept delinquent returns from a partnership and
then process them. Contrary to the IRS’s position here, the
IRS Manual does not take the view that a delinquent return
must also be sent by the partnership to a Service Center to
be considered “filed.”
If there was any lingering doubt about the IRS’s internal
views on the filing of delinquent returns, an IRS Office of
Chief Counsel legal memorandum puts that to rest. In the
Memorandum, the IRS considered whether “a revenue
officer can require a taxpayer to file delinquent returns
directly with the revenue officer rather than mailing the
returns to the appropriate Service Center.” IRS Office of
Chief Counsel, Chief Counsel Advice No. 199933039,
Filing Delinquent Returns Directly With Revenue Officers
(Aug. 20, 1999), at 1. The Memorandum was prompted by
a local practitioner challenging the “frequent[]” practice of
IRS revenue officers demanding taxpayers file delinquent
returns with them, rather than mailing the returns to an IRS
Service Center. Id. at 2.
The IRS Memorandum expressly disagrees with the
majority’s interpretation of the Tax Code and regulations—
also meaning that it disagrees with the IRS’s litigation
position here. It directly observes that neither the Tax Code
nor regulations “make any reference to delinquent returns.”
Id. at 3 n.1. And since the Code and regulations are “silent
on the issue of delinquent returns,” the IRS concluded that
“taxpayers may file their delinquent returns either with the
applicable Service Center or with a revenue officer.” Id. at
4 n.2. What’s more, the IRS encouraged taxpayers to file
32 SEAVIEW TRADING, LLC V.CIR
delinquent returns with IRS officers. Given the costs and
delays in sending a return to a Service Center, the IRS
advised that “it is generally in the taxpayer’s best interests to
file the delinquent return directly with the revenue officer
instead of mailing it to the appropriate Service Center.” Id.
(emphasis added); see also id. at 4 n.2.
So even the IRS’s chief legal officer recognizes that
taxpayers can and should file a late return directly with the
revenue officer rather than send it to a Service Center. Once
again, the IRS Memorandum makes no mention of a need
for taxpayers to take the redundant step of sending the late
return to the Service Center or the IRS representative’s
discretion to withhold acceptance of the return by refusing
to forward it on to the Service Center. And contrary to the
majority’s suggestion, the IRS’s legal interpretation didn’t
turn on the title of the IRS employee—it turned on the duties
and responsibilities of the employee. See id. at 3. And the
IRS has not claimed that the IRS revenue agent who
contacted Seaview here lacked the authority to request and
obtain the partnership’s delinquent return.
The IRS doesn’t deny that its agency guidances conflict
with its current litigation position, but only explains that its
internal “procedures are primarily for the benefit of the IRS,
not taxpayers.” That may be so, but the point is that the
IRS’s own directives confirm that taxpayers may file
delinquent returns with authorized officials under the Tax
Code and IRS regulations. And the inconsistency of the
IRS’s position is troubling: The IRS wants the ability to
direct taxpayers to submit delinquent returns to its
authorized officials, while maintaining the power for its
representatives to unilaterally decide whether the returns are
“filed” for statute-of-limitations purposes. The IRS thus
views the law one way as an internal matter and another way
SEAVIEW TRADING, LLC V. CIR 33
for litigation advantage. But the duty of the government is
not to win its cases; it’s to administer the law fairly and
consistently.
D.
With these legal principles in mind, resolution of this
case should have been straightforward. Seaview thought it
mailed its partnership tax return—also known as a Form
1065—for the 2001 tax year to the Ogden Service Center
back in July 2002. In July 2005, an IRS revenue agent
contacted Seaview saying that the IRS had not received the
return. The agent asked Seaview to provide a copy of the
return. In response, in September 2005, Seaview’s
accountant faxed the agent a signed copy of the return. In
the cover letter to the revenue agent, Seaview’s accountant
stated: “As we discussed, I have attached the 2001 tax return
for Seaview Trading LLC as well as the certified mailing.”
A month later, the same IRS agent informed Seaview
that its 2001 return had been selected for examination and
requested further information. Once again, the IRS letter
requested “[a]ll retained copies of the signed 2001 Form
1065 Federal income tax return of Sea View [sic] Trading
and any amendments thereto.” As part of its examination,
the IRS interviewed Seaview’s accountant in January 2006.
During the interview, the IRS noted that the accountant had
“previously provided” Seaview’s signed 2001 tax return and
introduced the Form 1065 as an exhibit. In July 2007,
Seaview’s counsel mailed another signed copy of the 2001
tax return to an IRS attorney “[p]ursuant to [their] prior
conversation.”
More than three years later, in October 2010, the IRS
issued Seaview a Final Partnership Administrative
Adjustment for the 2001 tax year. In that notice, the IRS
34 SEAVIEW TRADING, LLC V.CIR
stated that “[p]er Internal Revenue Service records, no tax
return was filed by [Seaview] for 2001,” but said, “[d]uring
the examination,” the partnership provided “a copy of a 2001
tax return which taxpayer claimed to have filed.” The IRS
then determined that “none of the income/loss/expense
amounts reflected on the 2001 unfiled tax return provided by
[Seaview was] allowable.” It then informed Seaview that it
would adjust the partnership’s tax liability for the year.
Under these facts, Seaview is right that the IRS’s
readjustment of its tax liability was too late. The IRS had
three years from the filing of the 2001 return to issue its
adjustment of tax liability. See 26 U.S.C. § 6229(a)
(repealed 2015). Here, the 2001 return was “filed” belatedly
in September 2005 when the IRS agent requested the
missing return and Seaview later delivered it to him. And
there’s no question that the IRS received the return since it
was acknowledged during the auditing process and used to
adjust the partnership’s tax liability. We thus should have
reversed the tax court.
II.
Because the IRS’s position here is inconsistent with the
Tax Code, its regulations, and its own guidances, I would
have reversed. I respectfully dissent.