When may a taxpayer's agent sign returns?

AuthorStein, Ronald A.

As a general rule, a taxpayer must personally sign his income tax return (Regs. Sec. 1.6061-1 (a)). Regs. Secs. 1.6012-1 (a)(5) and 1.6061-1(b), however, permit an agent to sign for a taxpayer under three narrow circumstances in which the taxpayer:

* Is unable to prepare the return because of disease or injury.

* Is continually absent from the U.S. for at least 60 days prior to the filing due date.

* Requests permission, in writing, from the district director, and the district director approves the request for good cause shown.

A properly completed Form 2848, Power of Attorney, that establishes the agent's authority, must accompany a return.

In Elliott, 113 TC No. 7, the Tax Court served notice that a taxpayer's failure to strictly adhere to the Sec. 6012 regulations may invalidate his return and support a late-filing penalty. In Elliott, a lawyer timely submitted his client's 1990 income tax return to the IRS in October 1991 .The lawyer purported to sign on the client's behalf under a power of attorney, but a Form 2848 was not attached to the return. In addition, the taxpayer did not seek permission for his lawyer to sign. (There was no indication that he was disabled or out of the U.S.)

Shortly after receipt, the Service sent the return back, requesting a power of attorney. The lawyer did not resubmit the return with a properly completed Form 2848 until the latter half of 1993. In October 1995, less than three years later, the IRS sent the taxpayer a deficiency notice for 1990.

The taxpayer contended that the period of limitations for assessment had expired. Citing Miller, 237 F2d 830 (5th Cir. 1956), he asserted that his 1990 return was properly signed and timely filed. In Miller, the Fifth Circuit held that a return signed in a taxpayer's name by one purporting to have authority and who, in fact, has authority, triggers the statute of limitations.

The Tax Court disagreed, holding that the deficiency notice was timely, because the 1990 return, as originally submitted, was improperly signed and, therefore, invalid. The court acknowledged that it had followed Miller in Booher, 28 TC 817 (1957), and Lombardo, 99 TC 342 (1992), aff'd sub. nom. Davis, 68 F3d 1129 (9th Cir. 1995). But Miller, it observed, was decided under the 1939 Code, which did not authorize the Service to regulate the signing of returns. In contrast, Sec. 6061-, requires taxpayers to sign returns in accordance with IRS forms and regulations.

The court also...

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