Missing Links?

BY KENNETH A. WEINSTOCK, CPA

In “Tax Matters: When a Tax Return Is Not a ‘Return’” (Dec. 09, page 73), I believe that you were addressing the specific issue of what is a validly filed return for purposes of Bankruptcy Code § 523(a). While I appreciate your pointing out the Links case, I think that this is an area that has seen litigation with results going both ways regarding late returns.

 

When I read the decision by Judge Speer, I noticed two lines that could lead one to believe that this case was decided primarily based upon the position of the government. At the end of the first paragraph on page 4, it states that the plaintiff (Links) was not represented by legal counsel. The first line on page 9 states, “Having not been presented with any argument to the contrary, the Court finds the conclusion reached in In re Creekmore to be sound.”

 

Creekmore filed his returns after substitute returns had been prepared and filed by the IRS pursuant to IRC § 6020(b). This is specifically excluded from being a validly filed return by the last paragraph of Bankruptcy Code § 523(a). It was not clear in the Links case whether the debtor filed his 2002 tax return after the IRS had filed a substitute return. Equating a late filed return with an unfiled return seems a bit harsh.

 

I think that the result in Links might have been different had Mr. Links hired a competent attorney to represent him.

 

Kenneth A. Weinstock, CPA

Alameda, Calif.

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