                  T.C. Memo. 1999-281



                UNITED STATES TAX COURT



   RICHARD ANDREWS AND L. SCOTT-ANDREWS, Petitioners
    v. COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 12628-98.                    Filed August 24, 1999.



     Ps filed a document purporting to be their 1995 Federal
income tax return; Ps' so-called return was filed on plain
sheets of paper. The IRS did not process the document as a
return because it did not include sufficient information. R
determined an income tax deficiency, an addition to tax
under sec. 6651(a)(1), I.R.C., and an accuracy-related
penalty under sec. 6662(a), I.R.C., for the 1995 taxable
year. Ps have conceded the deficiency and addition to tax
under sec. 6651(a)(1), I.R.C., as determined by R. Held:
Ps' putative return of tax not filed on the proper form
prescribed by the Secretary, and carrying a disclaimer that
it is not intended in any way as a self-assessment of tax,
is not a Federal income tax return. See Commissioner v.
Lane-Wells Co., 321 U.S. 219, 223 (1944).

     Held, further, Ps are not liable for the accuracy-
related penalty under sec. 6662(a), I.R.C., for their 1995
taxable year because they did not file a Federal income tax
return for that year. See sec. 6664(b), I.R.C.
                                - 2 -


       Richard Andrews and L. Scott-Andrews, pro se.

       Jordan S. Musen, for respondent.




               MEMORANDUM FINDINGS OF FACT AND OPINION

       NIMS, Judge: Respondent determined a deficiency, an addition

to tax, and a penalty for 1995 with respect to petitioners'

Federal income taxes as follows:

                           Addition to tax       Penalty
Year        Deficiency     Sec. 6651(a)(1)     Sec. 6662(a)
1995          $14,075          $2,781             $2,225

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue.    All

Rule references are to the Tax Court Rules of Practice and

Procedure.    All dollar amounts are rounded to the nearest dollar.

       Petitioners have conceded liability for the deficiency and

addition to tax under section 6651(a)(1) as determined by

respondent.    Moreover, respondent has conceded that petitioners

are entitled to deductions for interest and State income taxes

paid. After these concessions, the sole issue for decision is

whether petitioners are liable for the accuracy-related penalty

under section 6662(a).
                              - 3 -


                        FINDINGS OF FACT

     At the time the petition was filed, petitioners resided in

Carson, California.

     Petitioners filed a document (Document) with the Internal

Revenue Service (IRS) which purported to be their 1995 Federal

income tax return on six sheets of plain paper.    The first page

of the Document bears a date stamp from the Fresno Service Center

showing that it was received on February 23, 1997.    The Document

states on the first page in pertinent part:

     Note: This statement is prepared pursuant to the provisions
     of 26 USC § 6011(A) with full reservation of all of the
     right's of declarant in law, equity and all other natures of
     law. A declaration of exemption accompanies this statement.
     Declarant submits the information hereinafter set forth only
     to avoid sanction which might arise as a consequence of any
     determination or claim to the effect that declarants is
     [sic] required by law to make a return or statement. It is
     not a concession or admission of any tax payment obligation.
     * * * It is submitted in a good faith effort to supply all
     information which may be deemed relevant to the procurement
     of full restitution of money's had and received by the
     United States from declarant after deduction of monies
     lawfully owed, if any, by declarant. It is not intended in
     any way, and should not be construed, as a self-assessment.
     Since declarant is unaware of any official form which is
     properly addressed to the foregoing purposes, this
     unofficial form is submitted in accordance with the
     provisions of 26 CFR § 1:6011-1(b) [sic], and is made
     pursuant to the ruling of court in Zellerbach Paper Co. vs.
     Helverius [sic] 293 US 172, and Denman V. Motter 44 f2d 648.

     The Document contains the names, address, Social Security

numbers, and dependents of petitioners.    The Document further

indicates that petitioners were filing jointly.    Petitioners

signed the Document under penalty of perjury.    Schedule A of the
                                - 4 -


Document, titled "Gross Receipts", lists compensation income of

$79,914.    Schedule B of the Document, titled "Expenditures",

lists Federal and State withholding taxes in the respective

amounts of $4,844 and $1,078, Social Security taxes paid in the

amount of $3,856, and child care expenses of $4,800.    On the

final page, petitioners make a demand for restitution from the

United States for all taxes paid less all sums owed.    Petitioners

submitted Forms W-2 with the Document.    Petitioners never filed a

return for their 1995 taxable year on Form 1040.

     The IRS did not process the Document as a return because it

did not include sufficient information.

     Respondent mailed the notice of deficiency on April 16,

1998.

                               OPINION

     Respondent determined that petitioners were liable for the

accuracy-related penalty under section 6662(a) in the amount of

$2,225.    Section 6662(a) imposes an accuracy-related penalty of

20 percent on any portion of an underpayment of tax that is

attributable to items set forth in section 6662(b).    Section

6662(b)(1) applies section 6662(a) to any portion of an

underpayment attributable to negligence or disregard of rules or

regulations.

     However, the accuracy-related penalty under section 6662(a)

may only be imposed "in cases where a return of tax is filed
                                - 5 -


(other than a return prepared by the Secretary under the

authority of section 6020(b))."    Sec. 6664(b).   Respondent took

the position in his trial memorandum that the section 6662(a)

accuracy-related penalty applies in this case notwithstanding

that petitioners have failed to file a return for their 1995

taxable year.    In addition, respondent elicited testimony from

Lisa Zannitto, the IRS's Chief of Case Processing, Southern

California Appeals, that the Document submitted by petitioners

was not processed as a return because it did not contain

sufficient information to constitute a return.     On his brief,

respondent now takes the position that the Document does

constitute a return for purposes of sections 6664(b) and 6662(a).

      Section 6011(a) requires taxpayers to file a return or

statement according to the forms and regulations prescribed by

the Secretary.    Describing the statutory mandate, the U.S.

Supreme Court in Commissioner v. Lane-Wells Co., 321 U.S. 219

(1944), stated:

          Congress has given discretion to the Commissioner to
     prescribe by regulation forms of returns and has made it the
     duty of the taxpayer to comply. It thus implements the
     system of self-assessment which is so largely the basis of
     our American scheme of income taxation. The purpose is not
     alone to get tax information in some form but also to get it
     with such uniformity, completeness, and arrangement that the
     physical task of handling and verifying returns may be
     readily accomplished. * * * [Id. at 223.]

     The regulations implementing the statutory mandate under

section 6011(a) provide in pertinent part:
                               - 6 -


          (b) Use of prescribed forms. Copies of the prescribed
     return forms will so far as possible be furnished taxpayers
     by district directors. A taxpayer will not be excused from
     making a return, however, by the fact that no return form
     has been furnished to him. Taxpayers not supplied with the
     proper forms should make application therefor to the
     district director in ample time to have their returns
     prepared, verified, and filed on or before the due date with
     the internal revenue office where such returns are required
     to be filed. Each taxpayer should carefully prepare his
     return and set forth fully and clearly the information
     required to be included therein. Returns which have not
     been so prepared will not be accepted as meeting the
     requirements of the Code. In the absence of a prescribed
     form, a statement made by a taxpayer disclosing his gross
     income and the deductions therefrom may be accepted as a
     tentative return, and, if filed within the prescribed time,
     the statement so made will relieve the taxpayer from
     liability for the addition to tax imposed for the delinquent
     filing of the return, provided that without unnecessary
     delay such a tentative return is supplemented by a return
     made on the proper form. [Sec. 1.6011-1(b), Income Tax
     Regs.]

     Thus, in order to constitute a return for purposes of

section 6011(a), the regulations require the use of the proper

official form.   See Beard v. Commissioner, 82 T.C. 766, 775-776

(1984) (also recognizing that "the only permissible exception to

the use of the official form has been the permission, granted * *

* to tax return preparers * * * to reproduce and vary very

slightly the official form pursuant to the Commissioner's revenue

procedures."), affd. per curiam 793 F.2d 139 (6th Cir. 1986).

While the regulations also grant the Commissioner authority to

accept a substituted provisional form, the Commissioner is

certainly not required to accept any document submitted in lieu

of a proper official form.   If the Commissioner were obligated to
                               - 7 -


do so, the business of tax collecting would result in

insurmountable confusion.   See Parker v. Commissioner, 365 F.2d

792, 800 (8th Cir. 1966) (holding that the filing of a return on

a plain piece of paper, instead of on the correct printed form,

is not a return), affg. in part and revg. in part on other

grounds and remanding Foundation for Drive Meditation, Inc. v.

Commissioner, T.C. Memo. 1965-77.    Even if the taxpayer files his

return on the proper form, we have held that an altered Form 1040

does not constitute a return for purposes of section 6011(a).

See Sloan v. Commissioner, 102 T.C. 137, 146-147 (1994), affd. 53

F.3d 799 (7th Cir. 1995); Beard v. Commissioner, supra at 777;

see also Counts v. Commissioner, 774 F.2d 426, 427 (11th Cir.

1985), affg. per curiam T.C. Memo. 1984-561.

     But regardless of all other defects, petitioners' Document

cannot qualify as a return because petitioners' disclaimer

vitiates the Document at its core.     The Document is rendered

useless by petitioners' statement on the first page that the

Document "is not intended in any way, and should not be

construed, as a self-assessment."

     As a result of the disclaimer, it is doubtful that the IRS

can assess any tax on the basis of the Document.     The Internal

Revenue Code provides, in section 6201(a), that "The Secretary

shall assess all taxes determined by the taxpayer or by the

Secretary as to which returns * * * are made under * * * [the
                                 - 8 -


Internal Revenue Code]."   (Emphasis added.)      In this case,

petitioners, by reason of the disclaimer, have not self-assessed

any tax on the basis of the Document, which cannot therefore

qualify as a return.   See Sloan v. Commissioner, supra.

     Since petitioners did not file a return for their 1995

taxable year, section 6664(b) prevents imposition of the

accuracy-related penalty under section 6662(a).

     To reflect the foregoing,

                                              Decision will be

                                         entered under Rule 155.
