Regarding 6020(b) Returns
THE STATUTE CODIFIED AT 26 USC § 6020(B) imposes a mandate on the federal government to create a return of its own, and on its own behalf, when it actually has legal grounds for believing someone has had taxable receipts contrary to what appears on his or her filed return (or when a return is believed required but none has been filed). The statute is adequately-expressed in the regulations associated with this mandate:
Further, the 6020(b) mandate invokes another statute: As a required document, such signed returns created by the Secretary on the government's behalf must be signed under penalties of perjury:
There are no exceptions provided by the Secretary to this requirement in regard to 6020(b) returns in the regulations regarding these signing and verification provisions:
Pursuant to these rules, then, the law plainly says that the government is obligated to make a sworn 6020(b) return on its own behalf (by the hand of its agent) if it believes it has a legal basis and authority for alleging that a person has had an amount of "income" sufficient to require a return (and which is contrary to what appears on a return that person may have already filed).
6020(b) returns are never made in regard to CtC-educated filings, of course. But since its failure to produce such returns is an acknowledgement by the government that it does not have a legal basis and authority for disputing a filed return (or asserting that it is "frivolous", "false" or "fraudulent", or that a return is required but unfiled), the DOJ has taken to making the ridiculous and mendacious argument that the "shall" in the statute isn't really there, and that the statute doesn't apply to anything but a "failure to file" situation.
See a discussion and examples of that studied mendacity, and a backdoor acknowledgement of the true character of the 6020(b) mandate by the Sixth Circuit Court of Appeals, here.
INTERESTINGLY, 6020(b) IS A STATUTE for which there is very little "case-law". What there is consists of pretty much what the government attorneys misrepresented in the contest discussed above, concerning itself only with the specious argument that criminal failure-to-file charges can be avoided because the government is obliged to file a return on any non-filer’s behalf and therefore no one else is ever under an actual legal obligation to file a return; and the government’s ability to allege deficiencies when no original return has been filed without being first obliged to create and sign a 6020(b) return. (This process relies on taking unrebutted "information return" allegations of "income" received at face value, and the regulatory provision concerning "deficiency" proceedings at 26 C.F.R. § 301.6211-1, which says: "If no return is made, or if the return (except a return of income tax pursuant to sec. 6014) does not show any tax, for the purpose of the definition “the amount shown as the tax by the taxpayer upon his return” shall be considered as zero").
The limited scope of these rulings was nicely summarized by Chief United States Bankruptcy Court Judge Albert Dabrowski in 2006 (all emphasis in this excerpt is supplied by Judge Dabrowski):
Ridgway v. United States, CASE NO. 02-30358, United States Bankruptcy Court, District of Ct., 2006
By the way, it is important to point out that the IRS routinely deploys something it calls a "Substitute for Return" (SFR). This item is nicely described in this GAO response to an inquiry in 2000 by Senator Daniel Moynihan:
Here is how this is discussed in the current "Internal Revenue Manual":
You'll have noticed the "For the purpose of asserting the Failure to Pay Penalty, additional steps should be taken before submitting the SFR package" language. This is a reference to the assembly of a "purported" 6020(b) return for purposes of the FTP penalty, based on a specification at 26 U.S.C. § 6651(g) that reads:
That purported "6020(b) return" for this purpose is achieved by the addition of a Form 13496 certification-- a certification that declares the SFR to be a 6020(b) return for purposes of the section 6651(g) provision, as explained at IRM 18.104.22.168.4, Substitute for Return — IRC section 6651(g):
See one of these forms here.
Note that even though labeled a "6020(b) Certification, this form does NOT actually amount to (or convey) true 6020(b) stature, for lack of a perjury statement. It is plainly just a pretext for alleging compliance with the specialized and limited 6651(g) provision, just as the IRM language quoted above declares (and just as the "Form 13496" itself declares).
This brings us to the third element of the 6020(b) provisions, the first two of which were presented at the beginning of this discussion in their regulatory form at 26 C.F.R. § 301.6020-1(b) Execution of returns- (1) and (2):
The text in bold here explains why a "Form 13496 Certification" is spoken of in the extremely limited and qualified terms relating solely to the 6651(g) provision that we see in the IRM excerpts above and not as an actual 6020(b) good and sufficient for all legal purposes: because it's not. Remember, a Federal statute DOES expressly provide that an unsworn certification is NOT good and sufficient for all legal purposes:
While this pretense may be enough to get some Tax Court judges to conclude that 6651(g) requirements have been met, it suffices for nothing else, and in no way makes an SFR into an actual 6020(b) return.
"Whatever the form in which the government functions, anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority. ... And this is so even though ... the agent himself may be unaware of the limitations upon his authority."
United States Supreme Court, Federal Crop Ins. Corp. v. Merrill, 332 US 380-388 (1947)
“Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation.”
Ninth Circuit Court of Appeals, Lavin v. Marsh, 644 f.2d 1378 (1981)
*The IRS and DOJ have been known to cite to a 1975 Tax Court ruling, Hartman v. Commissioner, 65 T.C. 542 (1975)-- a "deficiency" case concerning a non-filer in which, like cases cited in the motion exchange discussed above, it was held that no 6020(b) was required for a deficiency proceeding to go forward when no return had been filed-- for the proposition that a[n actual] 6020(b) need not be signed under penalties of perjury. But though the ruling of this agency court does indeed say this (purely as a disposal of an irrelevant contention, since neither a 1040 nor a 6020(b) return was involved in the case), it does so without citation of authority and in complete disregard for-- indeed, apparent ignorance of-- 26 U.S.C. § 6065. Further, the rambling on this point conflates two different issues, reflecting confusion probably borrowed from Hartman, who apparently argued that the 6020(b) language somehow imposed a requirement for a signature under oath for mere deficiency determinations and findings:
Hartman v. Commissioner, 65 T.C. 542 (1975)
Can't argue with the court about the meaning of "subscribed" by itself, but of course that subscription must be made in conformity with other rules, one of which is found in 26 U.S.C. § 6065. In short, the citation of this case by government attorneys is just corrupt lawyering in an effort to abuse a non-precedential judicial expression of ignorance or corruption.