FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAVIEW TRADING, LLC, AGK

INVESTMENTS, LLC, TAX MATTERS 

PARTNER,

Petitioner-Appellant,

v.

COMMISSIONER OF INTERNAL 

REVENUE,

Respondent-Appellee.

No. 20-72416

Tax Ct. No.

1837-11

OPINION

Appeal from a Decision of the

United States Tax Court

Argued and Submitted October 18, 2021

San Francisco, California

Filed May 11, 2022

Before: Bridget S. Bade and Patrick J. Bumatay, Circuit 

Judges, and William K. Sessions III,* District Judge.

Opinion by Judge Bumatay;

Dissent by Judge Bade

* The Honorable William K. Sessions III, United States District 

Judge for the District of Vermont, sitting by designation.
2 SEAVIEW TRADING V. CIR

SUMMARY**

Tax

The panel reversed the Tax Court’s summary judgment 

in favor of the government, in a petition challenging a Final 

Partnership Administrative Adjustment and involving 

whether the three-year limitations period for adjustment of 

partnership losses under 26 U.S.C. § 6229(a) had begun to

run, and remanded for further proceedings.

Taxpayer Seaview Trading, LLC, a California-based 

limited liability company, is classified as a partnership for 

federal tax purposes. Seaview believed it filed its 2001 

partnership tax return (Form 1065) in July 2002, but the 

Internal Revenue Service has no record of receiving it. In 

2005, in response to a letter from an IRS revenue agent 

notifying it that the IRS had not received its 2001 federal 

income return, Seaview faxed the agent a signed copy of 

Form 1065. The next month, the same IRS agent informed 

Seaview that its 2001 return had been selected for 

examination and requested further information, including all 

copies of the signed Form 1065. In 2006, during an interview 

of Seaview’s accountant, the IRS noted that the accountant 

had previously provided a signed tax return and introduced 

Form 1065 as an exhibit. In 2007, Seaview’s counsel mailed 

another signed copy of the 2001 Form 1065 to an IRS 

attorney.

In 2010, the IRS issued Seaview a Final Partnership 

Administrative Adjustment (FPAA) for 2001. In that notice, 

** 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 V. CIR 3

the IRS stated that it had no record of a tax return filed by 

Seaview for 2001, but that the partnership had provided a 

copy of the return it claimed to have filed. The notice also 

indicated that none of the income/loss/expense amounts in 

the 2001 return were allowable. Seaview filed a petition in 

the Tax Court challenging the adjustment of losses.

The Tax Court held that Seaview did not “file” a tax 

return when it faxed a copy to the IRS agent or mailed a copy 

to the IRS counsel and, in any case, the copies of the 2001 

Form 1065 sent to the IRS in 2005 and 2007 were not 

“returns.” Seaview and the IRS then settled all their disputes 

but reserved Seaview’s right to appeal the Tax Court’s 

decision.

The panel first addressed whether the limitations period 

for adjustment of partnership losses under 26 U.S.C. 

§ 6229(a) had begun to run. This issue turns on whether 

Seaview’s tax return was ever “filed.” The panel held that 

when (1) an IRS official authorized to obtain and receive 

delinquent tax returns informs a partnership that a tax return 

is missing and requests that tax return, (2) the partnership 

responds by giving the IRS official the tax return in the 

manner requested, and (3) the IRS official receives the tax 

return, then the partnership has “filed” a tax return for 

purposes of § 6229(a). Accordingly, the panel concluded 

that Seaview’s 2001 tax return was filed when the IRS agent 

requested the missing return, Seaview delivered it, and the 

IRS acknowledged receipt during the auditing process in 

connection with the FPAA. Because the return was filed in 

2005, the IRS’s notice of FPAA in 2010 was untimely.

The panel next addressed whether Seaview’s belated 

submission of its Form 1065 qualified as a “return.” The 

panel applied the test under Beard v. Commissioner, 82 T.C. 
4 SEAVIEW TRADING V. CIR

766, 777 (1984): (1) the document must purport to be a 

return, (2) it must be executed under penalty of perjury, (3) it 

must contain sufficient data to allow calculation of tax, and 

(4) it must represent an honest and reasonable attempt to 

satisfy the requirements of the tax law. Applying those 

factors, the panel concluded that the Form 1065 was a 

“return.”

Dissenting, Judge Bade wrote that because it is 

undisputed that Seaview failed to file its return to the correct 

location in Ogden, Utah, in the manner prescribed in the 

applicable statute and regulations, either on time or 

belatedly, that conclusion should end the inquiry and the 

panel should affirm the Tax Court.
SEAVIEW TRADING V. CIR 5

COUNSEL

Lisa S. Blatt (argued), Sarah M. Harris, J. Matthew Rice, and 

Kimberly Broecker, Williams & Connolly LLP, 

Washington, D.C.; David W. Foster and Armando Gomez, 

Skadden Arps Slate Meagher & Flom LLP, Washington, 

D.C.; for Petitioner-Appellant.

Anthony T. Sheehan (argued) and Arthur T. Catterall, 

Attorneys; David A. Hubbert, Acting Assistant Attorney 

General; Tax Division, United States Department of Justice, 

Washington, D.C.; for Respondent-Appellee.

Professor T. Keith Fogg, Director; Janice Rovner Feldman, 

Volunteer Attorney; Tax Clinic at the Legal Services Center 

of Harvard Law School, Jamaica Plain, Massachusetts; for 

Amici Curiae Center for Taxpayer Rights and Federal Tax 

Clinic at the Legal Services Center of Harvard Law School.
6 SEAVIEW TRADING V. CIR

OPINION

BUMATAY, Circuit Judge:

Imagine you get a letter from an Internal Revenue

Service official saying that the IRS never received the tax 

return you thought you filed four years ago. In response, you 

fax a copy of your return to the IRS official. Two years go 

by, you then talk with an IRS lawyer, who again asks you for 

the same return. After that conversation, you send another 

copy of the return.

Three more years pass. You then get a notice that the 

IRS has decided to adjust your tax liability. The result: you 

owe the IRS a lot more money.

How can this be?—you ask. The IRS normally has only 

three years to adjust your taxes after you’ve filed your return. 

Not so fast, says the IRS. The two times you sent copies of 

the return to its officials didn’t count. You never mailed a 

return to an IRS service center; so, the return was never 

“filed.” And since you never “filed” a return, the IRS 

explains that it can still come after you at any time.

But that’s not what the IRS has said elsewhere. The IRS 

has alerted taxpayers many times that they can properly 

“file” their returns by sending late returns to IRS officials 

who ask for them. In fact, the IRS has said doing so is the 

preferred way to send late returns.

That is exactly what happened here. Seaview Trading, 

LLC twice responded to inquiries from IRS officials about 

the whereabouts of its 2001 partnership tax return. And both 

times, Seaview promptly delivered the return to the officials. 

Rather than consider the return “filed,” the IRS claims 

Seaview never filed a return. This logic defies the statutory 
SEAVIEW TRADING V. CIR 7

text, applicable regulations, IRS policies and practices, and 

common sense. For those reasons, we reverse.

I.

Seaview Trading, LLC, a California-based limited

liability company, is classified as a partnership for federal 

tax purposes. In 2001, Robert Kotick was Seaview’s 

majority partner, owning over 99% of the company. 

Robert’s father, Charles, was the minority partner. Seaview

believed it filed its partnership tax return—also known as a 

Form 1065—for the 2001 tax year back in July 2002. In its 

Form 1065 for 2001, Seaview reported a $35,459,542 loss 

from a tax-shelter transaction. Seaview claims it mailed the 

return to the IRS service center in Ogden, Utah—the correct 

place to send timely returns. But the IRS has no record of 

receiving such a filing. Even though Seaview has produced 

a certified mail receipt for the return’s mailing, it concedes 

that it cannot prove that the IRS received its 2001 return in 

2002.

In March 2004, the IRS began auditing Robert Kotick’s 

individual taxes for 2001 and 2002. As part of that audit, 

Kotick provided the IRS an unsigned copy of Seaview’s 

2001 Form 1065. The IRS did not audit Seaview as part of 

Kotick’s review since partnerships require a separate audit.

In July 2005, an IRS revenue agent sent Seaview a letter 

notifying the partnership that the IRS had not received its 

2001 federal income tax return. Attached to that letter was 

a request to “[p]lease produce the following information and 

documents”:

1. Did Seaview Trading file a Form 1065 

(U.S. Return of Partnership Income) or other 

Federal Income tax return for its taxable year 
8 SEAVIEW TRADING V. CIR

2001? If so, what type of form did it file, what 

service center was the return filed with, and

when was the return filed?

2. Provide copies of all retained copies of the 

return referred to in paragraph 1, above.

3. Provide copies of all receipts and other 

proof of mailing of the return referred to in 

paragraph 1, above.

In response, in September 2005, Seaview’s accountant 

faxed the IRS revenue agent a signed copy of Seaview’s 

2001 Form 1065 return, along with the certified mail receipt 

purporting to show its delivery to the IRS. In the cover letter 

to the IRS 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 revenue 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.” The IRS also 

requested documents related to specific entries on Seaview’s 

2001 Form 1065.

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 June 2007, the IRS also 

interviewed Robert Kotick. Again, the IRS acknowledged 

that it “obtained from [Seaview’s accountant] a Form 1065 
SEAVIEW TRADING V. CIR 9

prepared for Seaview Trading, LLC, for its tax year 2001.” 

The IRS also entered the Form 1065 as an exhibit for the 

interview. 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 

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 its 2001 reported loss from over $35 million to 

zero dollars.

In March 2011, Seaview petitioned the Tax Court to 

challenge the adjustment of its partnership losses. Seaview 

moved for summary judgment asserting that the 2010 tax 

adjustment was time-barred under the three-year statute of 

limitations. See 26 U.S.C. § 6229(a) (2000), repealed by 

Bipartisan Budget Act of 2015, Pub. L. No. 114-74, 129 Stat. 

584, 625, § 1101(a). The Tax Court disagreed. It held that 

(1) Seaview did not “file” the tax return by faxing a copy to 

the IRS revenue agent or by mailing a copy to the IRS 

counsel, and (2) in any case, the copies of the 2001 Form 

1065 sent to the IRS in 2005 and 2007 were not “returns.” 

Seaview and the IRS then settled all their disputes but 

preserved Seaview’s right to appeal the Tax Court’s denial 

of summary judgment.

Seaview now appeals. We review the Tax Court’s 

resolution of a summary judgment motion and 
10 SEAVIEW TRADING V. CIR

interpretations of the Tax Code de novo. Sollberger v. 

Comm’r, 691 F.3d 1119, 1123 (9th Cir. 2012); Meruelo v. 

Comm’r, 691 F.3d 1108, 1114 (9th Cir. 2012).

II.

Seaview challenges the IRS’s adjustment of its 

partnership losses, which it says came too late. Seaview 

contends that a tax return is “filed” when it is delivered to 

and received by an IRS official who requests it. So the 

limitations clock began, it argues, when Seaview delivered 

its return to an IRS revenue agent in September 2005. If so, 

the three-year limitations period long expired by the time the 

IRS adjusted Seaview’s losses in October 2010. See

26 U.S.C. § 6229(a) (2000). The IRS, on the other hand, 

insists that Seaview never filed its 2001 tax return and so the 

statute of limitations never started running. See id.

§ 6229(c)(3).

So the question in this case: What counts as a tax return 

“filing” for statute of limitations purposes under the Tax 

Code? We hold that when (1) an IRS official 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 official the 

tax return in the manner requested, and (3) the IRS official 

receives the tax return, the partnership has “filed” a tax 

return for § 6229(a) purposes.

A.

A partnership must file a return of partnership income

every year. 26 U.S.C. § 6031. The Tax Equity and Fiscal 

Responsibility Act of 1982 (“TEFRA”), Pub. L. No. 97-248, 

§§ 401–407, 96 Stat. 324, 648–71, established special audit 

and litigation procedures for certain partnerships. See
SEAVIEW TRADING V. CIR 11

26 U.S.C. §§ 6221–6234 (2000); see also Seaview Trading, 

LLC v. Comm’r, 858 F.3d 1281, 1284 (9th Cir. 2017).1 For 

partnerships subject to TEFRA, the IRS has three years to 

adjust a partnership’s income:

[T]he period for assessing any tax imposed 

. . . for a partnership taxable year shall not 

expire before the date which is 3 years after 

the later of—

(1) the date on which the partnership 

return for such taxable year was filed, 

or

(2) the last day for filing such return for 

such year[.]

26 U.S.C. § 6229(a) (2000). But if a taxpayer never files a 

return, the clock never begins to run. 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 an IRS’s tax 

assessment is timely depends on when a partnership’s tax 

return is “filed.”

Yet 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 

1 The Bipartisan Budget Act of 2015 repealed TEFRA’s partnership 

procedures. See Pub. L. No. 114-74, 129 Stat. 584, 625, § 1101(a). But

those amendments generally became effective for “partnership taxable 

years beginning after December 31, 2017.” Id. at 638; see also 15 W. 

17th St. LLC v. Comm’r, 147 T.C. 557, 580 (2016).
12 SEAVIEW TRADING V. CIR

Code states that each partnership return “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) (2000).

IRS regulations, in turn, specify the time, manner, and 

place of 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.

(3) Magnetic media filing. For magnetic 

media filing requirements with 

respect to partnerships, see section 

6011(e)(2) and the regulations 

thereunder.

26 C.F.R. § 1.6031(a)-1(e) (2001); see also id. § 1.6091-1(b) 

(2001) (cross-referencing § 1.6031(a)-1(e)(1) for the “place 

for filing returns of partnership income”). The regulations 

also establish the “consequences” for failing to file a 

partnership return. Id. § 1.6031(a)-1(a)(4) (crossreferencing the penalties of 26 U.S.C. §§ 6229(a), 6231(f), 

6698, and 7203). The Tax Code penalizes the failure to file 
SEAVIEW TRADING V. CIR 13

a return “at the time” prescribed, but doesn’t specify any 

penalty for filing a return at the wrong place. See 26 U.S.C. 

§§ 6698(a)(1), 7203.

So the IRS regulations expressly govern the time and

place to file timely partnership returns. They must be filed 

by April 15 following the tax year and, for partnerships with 

a principal place of business in California, sent to the IRS 

Service Center in Ogden, Utah. See Form 1065, 

Instructions. If Seaview was seeking to show a timely filing 

of its partnership return, it could not do so. That’s because 

Seaview concedes that it can’t prove its Form 1065 was ever 

received by the service center in Ogden. But that’s not the 

question before us. The question is whether Seaview 

belatedly “filed” its tax return by following the instructions 

of IRS officials and delivering the returns to them. On this 

front, the regulations do not appear to govern.

Section 1.6031(a)-1(e) doesn’t expressly establish how

taxpayers are to file delinquent returns. Nothing in the text 

says that the time and place requirements apply to untimely 

returns. Indeed, by definition, if a taxpayer files a return 

after April 15, the taxpayer can’t comply with § 1.6031(a)-

1(e) since the regulation specifies that date as when the 

return “must be filed.” 26 C.F.R. § 1.6031(a)-1(e)(2). So, 

at most, the regulation is silent on filing procedures for late 

returns.

And no IRS regulation prohibits the filing of untimely

returns with a requesting IRS official. As the IRS itself 

noted, there is more than one place for a partnership to 

properly file a return. For example, the law permits 

partnerships to hand-carry returns to certain IRS offices. See 

26 U.S.C. § 6091(b)(4) (2000) (allowing filing by handcarrying to an appropriate internal revenue district); 

26 C.F.R. § 1.6091-2(d)(1) (allowing filing by hand-
14 SEAVIEW TRADING V. CIR

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.

Because the Tax Code and the regulations do not define

when a delinquent return is “filed,” we turn 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 

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 
SEAVIEW TRADING V. CIR 15

him as a matter of record and reference in the proper place,” 

File, Black’s Law Dictionary (5th ed. 1979), or “to place in 

a file” or “to place on record, file an application,” File, 

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.”).

Based on the ordinary meaning of “filing,” we hold that 

a delinquent partnership return is “filed” under § 6229(a) 

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.2

2 The dissent posits a hypothetical traffic statute, which it claims

undermines our plain-meaning interpretation of § 6229(a). Dissent 37–

39. But the hypothetical only proves our point. The dissent’s 

hypothetical statute, unlike § 1.6031(a)–1(e), contains two independent

commands: (1) to stop at all STOP signs, and (2) to obey posted speed 

limits. Id. at 37. Violation of either command violates the law. But 

here, § 1.6031(a)–1(e) establishes two conditions necessary to comply 

with the filing command: the tax return must be (1) filed by April 15 and 
16 SEAVIEW TRADING V. CIR

B.

The IRS’s own internal guidance verifies that delinquent 

returns need not be sent to an IRS service center and may be 

filed with authorized IRS officials. And while internal 

guidance, such as the IRS Manual and IRS Policy 

Statements, don’t have the force of law and don’t confer 

rights on a taxpayer, Fargo v. Comm’r, 447 F.3d 706, 713 

(9th Cir. 2006), they show that the IRS agrees that no 

regulation governs the process of “filing” belated returns and

that it too follows the term’s ordinary meaning. In short, the 

IRS views the law one way as an internal matter and another 

way for litigation advantage. We decline to follow this 

twisted logic.

Let’s start with the IRS Manual. The Manual outlines 

several steps that an IRS examiner must undertake when 

dealing with a delinquent tax return:

• First, the IRS Manual encourages its 

examiners to “[s]ecur[e] a valid voluntary 

tax return from the taxpayer.” Internal 

Revenue Manual 4.12.1.1.3 (2005).

(2) sent to the IRS service center. Under a straightforward reading of 

§ 1.6031(a)–1(e), the only way to comply with its command is to satisfy 

both conditions. It is thus silent on what happens when only one 

condition—here, the filing deadline—cannot be met. Indeed, even under 

the dissent’s hypothetical, what is a driver supposed to do if a police 

officer directs the driver to blow through a STOP sign? Can the driver 

be cited for complying with the police officer’s command rather than 

stopping at the STOP sign? That’s closer to the scenario here—the IRS 

directed Seaview to submit its partnership return directly to the agent and 

Seaview complied. But the IRS still argues that Seaview never complied 

with filing the return.
SEAVIEW TRADING V. CIR 17

• Second, 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. § 4.12.1.4.2 

(emphases added).

• Third, once obtained, the IRS examiner is 

instructed to make a copy of the 

delinquent return and write on the copy: 

“PROCESS THE COPY AS AN 

ORIGINAL.” Id. § 4.4.9.5.8.

• Fourth, the examiner must immediately 

forward the copy of the return to the Case 

Processing Support unit “no later than the 

day after the return [wa]s received,” id.

§ 4.4.9.5.14.

• Finally, the Case Processing Support unit 

must send the return “to the appropriate 

campus,” i.e., the appropriate IRS service 

center, for processing. Id. § 4.4.9.7.3.

In short, the IRS Manual requires IRS officials to request, 

obtain, and accept delinquent returns from the taxpayer and 

then process them. Contrary to the IRS’s position here, the 

IRS Manual does not take the view that a delinquent return 

must be sent to a service center to be considered “filed.”

An IRS Policy Statement also confirms that delinquent 

returns need not be filed at an IRS service center. Rather, in 

a 2006 Policy Statement, the IRS publicly represented that it 
18 SEAVIEW TRADING V. CIR

will “accept[]” all delinquent returns received from 

taxpayers—no matter how the IRS receives the return. IRS 

Policy Statement 5-133 (2006). The IRS expressly stated 

that “[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.” Id. This statement 

thus makes clear that members of the public may send their 

returns to an IRS “representative” and trust that the return 

will be filed. Id.

If there was any lingering doubt about the IRS’s internal 

views on the filing of delinquent returns, an IRS Office of 

Chief Counsel advice 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 1.3

 This 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 first observed that neither 

the Tax Code nor regulations “make any reference to 

delinquent returns.” Id. at 3 n.1. But after surveying the 

applicable law, the IRS concluded that “revenue officers in 

the performance of their assigned duties can request that 

taxpayers file their delinquent returns with the revenue 

officer instead of mailing the delinquent return to the 

applicable Service Center.” Id. at 4 (emphasis added). 

3 While this Chief Counsel Advice didn’t directly analyze the filing 

of delinquent partnership returns, the IRS hasn’t provided any reason to 

apply a different analysis to such returns.
SEAVIEW TRADING V. CIR 19

What’s more, the memorandum expressed a preference for 

delinquent returns being filed with IRS officers. Given the 

costs and delays with sending a return to a service center, the 

Chief Counsel advised that “it is generally in the taxpayer’s 

best interest[] 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 Chief Counsel recognizes that taxpayers can 

and should file a late return directly with the revenue officer 

rather than send it to a service center.

The IRS doesn’t deny that its internal procedures conflict 

with its current litigation position, but only claims that its 

internal “procedures are primarily for the benefit of the IRS, 

not taxpayers.” That may be so, but the point is not whether 

these internal documents benefit taxpayers. The point is that 

the IRS’s own directives confirm the plain language of the 

Tax Code and IRS regulations—that taxpayers may file 

delinquent returns with authorized officials. 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 to unilaterally decide whether the returns are “filed” 

for statute-of-limitations purposes. We reject this 

nonsensical position and instead follow the ordinary 

meaning of the Tax Code.

C.

The IRS and dissent insist that delinquent returns 

delivered to IRS officials cannot be considered “filed” 

because of caselaw requiring “meticulous compliance by the 

taxpayer with all named conditions” to secure the benefit of 

the statute of limitations. Lucas v. Pilliod Lumber, 281 U.S. 

245, 249 (1930). But such an argument only begs the 

question of what the “named conditions” are for filing 
20 SEAVIEW TRADING V. CIR

delinquent returns. As discussed above, the Tax Code and 

regulations are silent on the proper procedures for filing a 

delinquent tax return. Instead, it is the ordinary meaning of 

“filing” under § 6229(a) that governs delinquent returns. So

when an authorized IRS official requests a missing return 

from a taxpayer, the taxpayer complies with the conditions 

of filing by delivering the return in the manner requested.

The IRS and dissent also cite several out-of-circuit cases

holding that submitting a return to IRS personnel or to the 

wrong place doesn’t constitute a “filing.” But none of those 

cases involve the facts here—when an IRS revenue agent 

authorized to obtain delinquent returns requested and 

received the return from a taxpayer. See, e.g., Coffey, 

987 F.3d at 813–15 (no filing when taxpayer sent return to 

the Virgin Islands’ Bureau of Internal Revenue); Comm’r v. 

Estate of Sanders, 834 F.3d 1269, 1278–79 (11th Cir. 2016) 

(same); Allnutt v. Comm’r, 523 F.3d 406, 408–13 (4th Cir. 

2008) (no filing when taxpayer hand-delivered return to an 

unidentified man in the IRS District Director’s office); 

O’Bryan Bros. v. Comm’r, 127 F.2d 645, 647 (6th Cir. 1942) 

(no filing when taxpayer gave return to revenue agent under 

old tax system—no longer in force today—that allowed only 

tax “collector” to receive returns); W.H. Hill Co. v. Comm’r,

64 F.2d 506, 507–08 (6th Cir. 1933) (same).

To be sure, several Tax Court cases support the IRS’s 

view in this litigation. See, e.g., Friedmann v. Comm’r, 

82 T.C.M. (CCH) 381, 2001 WL 883222, at *6 (2001) (no 

filing when the taxpayer mailed the return to an auditing IRS 

agent because the “taxpayer [did not] meticulously comply 

with all conditions for application of the statute”). But we 

find more persuasive the Tax Court’s analysis in Dingman v. 

Commissioner, 101 T.C.M. (CCH) 1562, 2011 WL 2150027 

(2011). In Dingman, the Tax Court held that the hand-
SEAVIEW TRADING V. CIR 21

delivery of returns to IRS Criminal Investigation Division 

special agents constituted “filing.” Id. at *1. The court 

reasoned that (1) IRS could not prove that the special agents 

lacked authority to accept the returns; (2) the Commissioner 

has recognized revenue officers’ authority to receive 

delinquent returns for filing; (3) the IRS Manual 

contemplated that the special agents could receive 

delinquent returns and instruct IRS employees on processing 

of delinquent returns; and (4) the return was ultimately 

processed by the IRS. Id. at *11–12. Such facts closely 

mirror this case.

D.

We thus hold that’s Seaview’s Form 1065 for tax year 

2001 was “filed” in September 2005 when the IRS revenue 

agent requested the missing return and Seaview later 

delivered it to the revenue agent.4

 And there’s no question 

that the IRS received the return since it was acknowledged 

during the auditing process and used to issue the Final 

Partnership Administrative Adjustment. And because the 

2001 return was “filed” by September 2005, the IRS’s notice

of adjustment in October 2010 was untimely. See 26 U.S.C. 

§ 6229(a) (2000).5

4 Since no party challenges the authority of the IRS revenue agent 

here to obtain Seaview’s tax return, we need not decide which IRS 

officials fall into the category of officials who may obtain and process 

delinquent returns. But the IRS Office of Chief Counsel has held that 

revenue officers at the GS-9, GS-11, and GS-12 levels have authority to 

“secur[e] and process[] delinquent returns.” IRS, Chief Counsel Advice 

No. 199933039 (Aug. 20, 1999), at 3.

5 We don’t reach whether the mailing of the return to IRS counsel in 

July 2007 also constituted a “filing” since the 2005 filing resolves the 

matter.
22 SEAVIEW TRADING V. CIR

III.

One more question remains in this case. That’s because

the Tax Court also ruled that Seaview’s belated submission 

of its Form 1065 didn’t even qualify as a “return.” In the 

Tax Court’s view, Seaview didn’t “intend” to send a “return” 

when it faxed the Form 1065 to the IRS revenue agent in 

2005 because it included a copy of the certified mail receipt 

to show that the return had been previously filed in July 

2002. We disagree.

While the Tax Code doesn’t define “return,” we use an 

objective inquiry—not the subjective intent of the filer—to 

assess whether a document is a return. See Badaracco v. 

Comm’r, 464 U.S. 386, 397 (1984).6

 We look at whether the 

documents “purported to be returns, were sworn to as such, 

and appeared on their faces to constitute endeavors to satisfy 

the law.” Id. We also use the “widely-accepted” test of what 

6 The dissent contends that Badaracco also controls when a

delinquent return is “filed” under § 6229(a) for statute-of-limitation 

purposes. Dissent 51–54. But a quick reading of the case shows that is 

not the case. As Justice Blackmun states right off the bat, “[t]he issue 

before [the Court was] the proper application of §§ 6501(a) and (c)(1) to 

the situation where a taxpayer files a false or fraudulent return but later 

files a nonfraudulent amended return.” Badaracco, 464 U.S. at 388. 

Under § 6501(c)(1), the IRS may assess and collect taxes “at any time” 

if the taxpayer files a “fraudulent return.” So the Court had to confront 

whether a nonfraudulent return submitted after a fraudulent one nullifies 

the limitless statute of limitations provided in § 6501(c)(1). The Court 

looked to the unambiguous text of the statute to hold that it does not. 

464 U.S. at 392–93. But this straightforward interpretation of § 6501 

doesn’t bear on what counts as a delinquent “filing” under § 6229(a). 

Foreclosed by Badaracco’s actual holding, the dissent is left to argue 

that Badaracco requires us to “strictly construe[]” § 6229’s statute of 

limitations “in favor of the government.” Dissent 64. But even so, we 

don’t think that means we must give the government carte blanche to 

apply § 6229 however and whenever it wants.
SEAVIEW TRADING V. CIR 23

constitutes a “return” found in Beard v. Commissioner, 

82 T.C. 766, 777 (1984). In re Hatton, 220 F.3d 1057, 1060 

(9th Cir. 2000). Under Beard, (1) the document “must 

purport to be a return”; (2) “it must be executed under 

penalty of perjury”; (3) “it must contain sufficient data to 

allow calculation of tax”; and (4) “it must represent an 

honest and reasonable attempt to satisfy the requirements of 

the tax law.” Id. at 1060–61 (simplified).

The first Beard factor is straightforward. The IRS 

revenue agent specifically asked for Seaview’s 2001

“return” in July 2005 and received the faxed Form 1065 in 

response. By the context of this exchange, the Form 1065 

faxed over by Seaview unambiguously purports to be a 

“return.” See Coffey v. Comm’r, 150 T.C. 60, 84–89 (2018) 

(holding that whether a document constitutes a “return” 

takes “consideration of the context of a particular case”), 

reversed on other grounds by Coffey, 987 F.3d at 808. 

Indeed, the IRS treated the document as such. For example, 

in the notice adjusting Seaview’s partnership losses, the IRS 

expressly described the Form 1065 as a “tax return,” while 

maintaining that it was “unfiled.” We also disagree with the 

Tax Court that providing the certified mail receipt with the 

Form 1065 showed that the document was not a “return.” 

Instead, the mail receipt goes to Seaview’s intent to “file” 

the Form (which we resolve above), not to whether the faxed 

Form 1065 purports to be a Form 1065.

Second, the Form 1065 was signed under penalty of 

perjury by Robert Kotick, Seaview’s majority partner. The 

IRS disputes that because the faxed Form 1065 didn’t bear 

an original signature. But the lack of a wet signature doesn’t 

necessarily prevent a document from being a “return.” See

Coffey, 150 T.C. at 91–92 (holding that a scanned copy of 

the return counts as a return because nothing “in the Code or 
24 SEAVIEW TRADING V. CIR

regulations . . . explicitly calls for an ‘original’ signature”); 

see also In re Harold, 588 B.R. 484, 495 (Bankr. E.D. Mich. 

2018) (“[A]s a matter of law, a copy of a signature rather 

than a wet-ink original signature [does not] necessarily 

invalidate[] the filing of a return.”). Indeed, the IRS Office 

of Chief Counsel has interpreted the Tax Code’s signature 

requirements under 26 U.S.C. §§ 6061 and 6065 to “be 

satisfied by a faxed copy of a taxpayer’s manual signature if 

the taxpayer adopts the faxed copy as his or her signature for 

purposes of the return.” IRS Office of Chief Counsel, Chief 

Counsel Advice No. 200137053, Facsimile Signatures 

(Sept. 14, 2001), at 3.7

 The IRS here confirmed that Kotick 

signed the faxed Form 1065 during his 2007 deposition.

Third, Seaview’s faxed Form 1065 contained sufficient 

data for the IRS to calculate the tax liability. The submitted 

form showed comprehensive details of Seaview’s income, 

assets, and deductions for 2001. The IRS then used the faxed 

Form 1065 to adjust Seaview’s claimed loss of $35,496,542 

down to zero. And the IRS made clear that its assessment 

came directly from the copy of the 2001 tax return received 

from Seaview.

Lastly, Seaview’s faxed Form 1065 represented “an 

honest and reasonable attempt to satisfy the requirements of 

the tax law.” Hatton, 220 F.3d at 1060–61. In assessing this 

factor, we look to the timing and context of the purported 

return’s submission. See In re Smith, 828 F.3d 1094, 1097 

(9th Cir. 2016) (holding that a tax filing was not “honest and 

reasonable” when created seven years after the return was 

due and three after the IRS already issued an assessment). In 

7 Once again, we look to IRS internal guidance not as granting 

taxpayers an enforceable right, but as confirming our interpretation of 

the law.
SEAVIEW TRADING V. CIR 25

September 2005, less than two months after learning that the 

IRS had not received its 2001 tax return, Seaview faxed over 

the Form 1065 to the IRS revenue agent. The IRS was then 

able to use the faxed Form 1065 to facilitate its audit and 

complete its assessment. Under these circumstances, we 

have no trouble finding that the faxed Form 1065 was an 

honest and reasonable attempt at complying with the law.

Because the Form 1065 that Seaview faxed to the IRS in 

2005 meets all the Beard criteria, we hold that the faxed 

Form 1065 was a “return.”8

IV.

The judgment of the Tax Court is reversed, and the case 

is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

BADE, Circuit Judge, dissenting:

The IRS generally has three years after the date a 

partnership tax return is filed to adjust that return and assess 

taxes. 26 U.S.C. § 6229(a) (2000). However, when a tax 

return is not filed, this three-year statute of limitations does 

not run, and “any tax . . . arising in such year may be 

assessed at any time.” Id. § 6229(c)(3). The issue here is 

whether Seaview Trading, LLC “filed” its 2001 partnership 

return when it shared what it described as a “retained copy” 

of the return with IRS officials in 2005 and 2007, as it now 

8 Since the September 2005 faxing of the Form 1065 constituted 

both a “return” and a “filing,” we do not reach whether the July 2007 

mailing of the Form 1065 also constituted a “return.”
26 SEAVIEW TRADING V. CIR

argues. If so, the IRS’s adjustment of that return and 

assessment of taxes in 2010 were time-barred. If not, the 

IRS’s rejection of Seaview’s claimed $35 million loss from 

a tax shelter, and assessment of the resulting taxes, were not 

time-barred, and we must affirm the Tax Court’s rejection of 

Seaview’s claims.

For many years—indeed, in all its communications with 

the IRS and in litigating this case before the Tax Court—

Seaview maintained that it had filed its 2001 partnership 

return in 2002, and that it had filed the return to the correct 

location, the IRS service center in Ogden, Utah.1

 See 

26 C.F.R. § 1.6031(a)-1(e) (2001); IRS, Instructions for 

Form 1065 at 4 (2001). Now, Seaview acknowledges that it 

cannot show that its return ever reached the Ogden service 

center. It is therefore undisputed that Seaview failed to file 

its return to the correct location, either on time or belatedly. 

That conclusion should end our inquiry, and we should 

affirm the Tax Court.

Indeed, the majority concedes that Seaview was required 

to file its return with the Ogden service center in 2002, in the 

manner prescribed in the applicable statute and regulations. 

Maj. Op. 11–13. And the majority concedes that Seaview’s 

2001 partnership return never reached this location, the IRS 

never processed it as a filed return, and Seaview cannot show 

that it complied with the regulations. Maj. Op. 13. 

Therefore, under the plain text of the Tax Code and IRS 

regulations and the unanimous weight of applicable 

1 The Tax Code provides that 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) (2000). The regulations, in turn, set 

forth the specific place, time, and manner requirements for filing

partnership returns. See 26 C.F.R. § 1.6031(a)-1(e) (2001).
SEAVIEW TRADING V. CIR 27

precedent, the conclusion in this case is clear: Seaview 

never filed its 2001 partnership return, and the IRS was 

permitted to adjust Seaview’s 2001 partnership return at any 

time. See 26 U.S.C. § 6229(c)(3) (2000); id. § 6230(i); 

26 C.F.R. § 1.6031(a)-1(e) (2001).

The majority, however, goes to great lengths to avoid the 

result that the plain text of the Tax Code and the IRS 

regulations compel, taking issue with what it sees as the 

IRS’s “inconsistency.” Maj. Op. 6–7, 16, 19. The majority 

relies on IRS internal guidance documents to conclude that 

requiring Seaview to file its partnership return at the time 

and place designated in the regulations is unfair.2 Maj. Op. 

16–19.

In its attempt to remedy this perceived unfairness, the 

majority brushes aside all sources of binding and persuasive 

legal authority. For the majority, it matters little that the Tax 

Code and regulations specify the mandatory time and place 

for filing a tax return, 26 U.S.C. § 6230(i) (2000); 26 C.F.R. 

§ 1.6031(a)-1 (2001), and that Seaview never complied with 

those provisions. Maj. Op. 10–15. And to reach its desired 

result, the majority disregards Supreme Court precedent 

holding that taxpayers must meticulously comply with filing 

requirements to benefit from the statute of limitations, Lucas 

v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930), and that we 

must strictly construe the statute of limitations in favor of the 

government, Badaracco v. Comm’r, 464 U.S. 386 (1984). 

2 To be sure, the majority avoids explicitly complaining that the Tax 

Code and regulations are “unfair.” But the opening paragraphs of the 

opinion—in which the majority asks its readers to “imagine” that they, 

like Seaview, were mistreated when the IRS did not treat unfiled returns 

as properly filed returns, and laments “How can this be?”—expose the 

majority’s underlying angst that the filing requirements are unfair. Maj. 

Op. 6–7.
28 SEAVIEW TRADING V. CIR

Maj. Op. 19, 22 n.6. The majority also tramples the 

overwhelming body of case law from our sister circuits and 

the Tax Court rejecting the result it reaches. Maj. Op. 20–

21.

How does the majority manage to sidestep so much 

binding and persuasive legal authority? In what can only be 

described as an astonishing and unprecedented holding, the 

majority decides that because Seaview violated some 

subsections of the applicable statute and regulation, the 

remaining provisions do not apply to it. Maj. Op. 13–15 & 

n.2. In other words, the majority reasons that the parts of the 

law governing where to file a partnership return do not apply 

in this case because Seaview did not comply with the parts 

of the law governing when to file a partnership return. Maj. 

Op. 13–15 & n.2.

Thus, the majority reads a massive gap into the 

regulations by concluding that 26 C.F.R. § 1.6031(a)-1(e) 

(2001)—the regulation setting forth the place, time, and 

manner requirements for filing partnership returns—only

applies to timely returns. Maj. Op. 13. Under the majority’s 

sweeping holding, as long as a taxpayer does not comply 

with the regulatory deadlines for filing a return (or in other 

words as long as the taxpayer submits a return late), the 

taxpayer is not subject to the regulation’s other provisions 

and can “file” its return by sending it to virtually any IRS 

employee. Maj. Op. 10, 21 & n.4. The majority thus effects 

a sea change in the interpretation of long-standing, and 

previously uncontroversial, filing regulations.

The majority’s analysis hinges in large part on IRS 

internal guidance documents, even though the majority 

concedes, as it must, that these documents lack the force of 

law and do not confer rights on taxpayers. See e.g., Fargo 

v. Comm’r, 447 F.3d 706, 713 (9th Cir. 2006); Maj. Op. 16. 
SEAVIEW TRADING V. CIR 29

The majority errs by focusing on what is ultimately a red 

herring when it attempts to find support for its position in 

internal IRS guidance documents.

Moreover, the majority’s conclusion—that the IRS 

failed to follow its internal guidance and therefore it is unfair 

to apply the Tax Code and regulations to conclude that 

Seaview failed to file its 2001 partnership return—impliedly 

applies estoppel to prevent the IRS from assessing taxes 

against Seaview for the 2001 tax year. But neither the 

majority nor Seaview has established any of the elements of 

estoppel. The majority’s attempt to apply an implied form 

of estoppel cannot be countenanced.

As described in greater detail below, in addition to being 

deeply implausible and contrary to law, the majority’s 

analysis and conclusions are logically absurd and should not 

be the holding of this court. As an initial matter, the 

majority’s conclusions are foreclosed by the plain text of the 

Tax Code and IRS regulations. Undaunted, the majority fills 

the gap that it reads into the regulations by creating its own, 

and entirely novel, rule for filing delinquent returns. Maj. 

Op. 6–7. If this sort of judicial policymaking were not bad 

enough, the majority’s holding also misapplies IRS internal 

guidance, misconstrues the record, and wrongly implies that 

the government may be equitably estopped from applying 

the Tax Code and regulations under these circumstances. 

See Maj. Op. 7–9, 16–21. Just as problematically, the 

majority’s holding defies long-standing, binding Supreme 

Court precedent, needlessly creates a circuit split, and 

disregards the Tax Court’s expertise and authority on matters 

of nationwide importance. I respectfully dissent.
30 SEAVIEW TRADING V. CIR

I.

The majority attempts to avoid the obvious conclusion 

that Seaview failed to file its 2001 partnership return by 

applying a sui generis method of statutory and regulatory 

interpretation. It reasons that because the regulations state 

both the place and time for filing a partnership return, the 

regulations apply only to timely returns. Maj. Op. 13. Thus, 

delinquent returns—which is how the majority characterizes 

the copies Seaview sent to IRS employees in 2005 and 

2007—are not subject to the regulations. Maj. Op. 13–15. 

After creating this atextual distinction, the majority is left 

with a regulatory gap of its own making: the correct filing 

procedures for delinquent returns. See Maj. Op. 13 –15. The 

majority takes the opportunity to fill this perceived gap, 

manufacturing (one might just as easily say legislating) out 

of whole cloth its own filing regime for delinquent returns. 

Maj. Op. 10, 15, 21.

But the notion that “the Tax Code and regulations are 

silent on the proper procedures for filing a delinquent tax 

return” is flatly contradicted by the Code and regulations and 

finds no support in any of the case law. Maj. Op. 20. And 

once this erroneous conclusion is removed from the majority 

opinion, the remainder of its reasoning cannot stand, as the 

majority tacitly concedes. Maj. Op. 13, 20.

A.

The validity of the IRS’s 2010 adjustment turns on 

whether Seaview ever filed its 2001 partnership return. See 

26 U.S.C. § 6229(a), (c)(3) (2000). Neither the Tax Code 

nor IRS regulations “define the terms ‘file’ or ‘filed.’” 

Coffey v. Comm’r, 987 F.3d 808, 812 (8th Cir. 2021) (citing 

Allnutt v. Comm’r, 523 F.3d 406, 412 (4th Cir. 2008)), cert. 

denied, 142 S. Ct. 758 (2022). But, as the majority 
SEAVIEW TRADING V. CIR 31

acknowledges, Maj. Op. 20–21, “[c]ourts have long held . . .

that in order for returns to be considered ‘filed’ for purposes 

of setting the period of limitations in motion, the returns 

must be delivered, in the appropriate form, to the specific 

individual or individuals identified in the Code or 

Regulations.” Allnutt, 523 F.3d at 412–13.

Here, the Code provides that 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) (2000). 

The regulations include § 1.6031(a)-1, which governs 

“[r]eturn[s] of partnership income.” See 26 C.F.R. 

§ 1.6031(a)-1 (2001). That section, in turn, includes a 

subsection, § 1.6031(a)-1(e), labeled “[p]rocedural 

requirements,” which sets forth the specific place, time, and 

manner requirements for filing partnership returns. Id.

§ 1.6031(a)-1(e)(1)–(3). The place for filing is “the service 

center prescribed in the relevant IRS revenue procedure, 

publication, form, or instructions to the form.” Id.

§ 1.6031(a)-1(e)(1). The time for filing is “on or before the 

fifteenth day of the fourth month following the close of the 

taxable year of the partnership.” Id. § 1.6031(a)-1(e)(2). As 

everyone agrees, the service center prescribed in this case 

was the IRS service center in Ogden, Utah. Maj. Op. 7, 13;

see IRS, Instructions for Form 1065 at 4 (2001).

Applying this straightforward statutory and regulatory 

framework, informed by long-standing, binding precedent 

that a taxpayer must show “meticulous compliance . . . with 

all named conditions in order to secure the benefit” of the 

statute of limitations, Lucas, 281 U.S. at 249, the obvious 

conclusion, as the Tax Court found, is that because Seaview 

cannot show that it sent its return to the Ogden service 

center, it cannot show meticulous compliance with the 
32 SEAVIEW TRADING V. CIR

regulations, and therefore cannot invoke the statute of 

limitations.

The majority, seeking to avoid this result, Maj. Op. 19,

takes a different approach. After recounting the relevant 

statutory and regulatory provisions, the majority summarizes 

what those provisions say with the following unsupported 

assertion: “So the IRS regulations expressly govern the time 

and place to file timely partnership returns.” Maj. Op. 13

(emphasis added). This conclusion allows the majority to 

reason that the “time and place requirements” do not “apply 

to untimely returns,” which in turn allows the majority to 

craft its own delinquent filing regulation based on “the 

ordinary meaning” of the term “file.” Maj. Op. 10, 13–15.

As the majority admits, if its reading is incorrect, and 

instead the regulatory place and time filing requirements 

apply to Seaview, then Seaview’s argument fails, and the 

IRS’s 2010 adjustment was not barred by the statute of 

limitations. Maj. Op. 13, 19. Therefore, it is worth carefully 

considering whether the majority is correct that the 

regulations govern only “timely partnership returns” and are 

“silent on the proper procedures for filing a delinquent tax 

return.” Maj. Op. 13, 20. And that careful consideration 

compels the conclusion that the majority is incorrect, and 

that its approach is deeply flawed.

1.

Perhaps the most patent flaw in the majority’s conclusion 

is its inconsistency with the text of the Tax Code, § 6230(i). 

See Limtiaco v. Camacho, 549 U.S. 483, 488 (2007) (“As 

always, we begin with the text of the statute.”). Section 

6230(i) states that a tax return “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) (2000).
SEAVIEW TRADING V. CIR 33

Importantly, § 6230(i) uses the word “shall.” Id. “Shall” 

ordinarily renders what follows it mandatory. See 

Firebaugh Canal Co. v. United States, 203 F.3d 568, 573–

74 (9th Cir. 2000) (“The term ‘shall’ is usually regarded as 

making a provision mandatory, and the rules of statutory 

construction presume that the term is used in its ordinary 

sense unless there is clear evidence to the contrary.”); 

Antonin Scalia & Brian A. Garner, Reading Law: The 

Interpretation of Legal Texts 114 (2012) (“[W]hen the word 

shall can reasonably be read as mandatory, it ought to be so 

read.”). Here, it is reasonable to read § 6230(i)’s use of 

“shall” as mandatory. Nothing in the text suggests it is 

optional for a taxpayer to disobey the regulations’ place, 

time, or manner requirements. At a minimum, there is no 

“clear evidence” to suggest that § 6230(i) is not a mandatory 

provision. Firebaugh Canal Co., 203 F.3d at 574. The 

majority certainly points to no such evidence.

In addition, § 6230(i) mandates compliance with all 

three conditions of place, time, and manner. Place, time, and 

manner are all linked by the word “and,” which is a 

conjunctive word that, in this context, means that each 

condition is required. See Confederated Tribes & Bands of 

Yakama Nation v. Yakima County, 963 F.3d 982, 990 (9th 

Cir. 2020) (“The most common meaning of the word ‘and’ 

is as a conjunction expressing the idea that the two concepts 

are to be taken ‘together.’ Thus, when ‘and’ is used to join 

two concepts, it is usually interpretated to require ‘not one 

or the other, but both.’” (citations omitted)).

Accordingly, the majority’s theory that a taxpayer is 

excused from place or manner requirements by failing to 

adhere to time requirements is flatly foreclosed by the text 

of § 6230(i). The statute is mandatory, and the place, time, 

and manner conditions are listed conjunctively, meaning 
34 SEAVIEW TRADING V. CIR

each one is required. The Tax Code is not “silent” on 

whether a taxpayer is obliged to comply with the place and

time requirements set forth in the regulations: it plainly 

requires compliance with both. See 26 U.S.C. § 6230(i) 

(2000); Maj. Op. 13.

2.

There is likewise no support for the majority’s 

conclusion that the regulations themselves are “silent” about 

the need to comply with both time and place conditions, or 

that § 1.6031(a)-1(e) “expressly govern[s]” only the “time 

and place to file timely partnership returns.” Maj. Op. 13,

20. Starting with the text,3 § 1.6031(a)-1(e) reads, in 

relevant part:

(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 . . . .

(2) Time for filing. The return of a 

partnership must be filed on or before the 

fifteenth day of the fourth month following 

3 We construe regulations using the same “toolkit” of interpretation 

as we do for statutes. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see 

also id. at 2446 (Gorsuch, J., concurring) (“When we interpret a 

regulation, we typically (at least when there is no agency say-so) proceed 

in the same way we would when interpreting any other written law: We 

begin our interpretation of the regulation with its text and, if the text is 

unclear, we turn to other canons of interpretation and tie-breaking rules 

to resolve the ambiguity.” (internal quotation marks omitted)).
SEAVIEW TRADING V. CIR 35

the close of the taxable year of the 

partnership.

26 C.F.R. § 1.6031(a)-1(e) (2001). Reviewing these 

provisions, the majority concludes that they govern only 

“timely partnership returns.” Maj. Op. 13. But nothing in 

the regulatory text itself suggests it is limited to timely 

returns: Both the time and place provisions explicitly apply 

to “[t]he return of a partnership.” 26 C.F.R. § 1.6031(a)-

1(e). There is no text limiting the place requirement to 

timely returns, or to some other subset of partnership returns; 

the only natural reading of the regulation is that it applies to 

a “return of a partnership,” regardless of whether the return 

is timely or delinquent. Moreover, when the regulation is 

read with the mandatory and conjunctive requirements in the 

enabling statute, § 6230(i), it is plain that taxpayers must 

follow both the time and place requirements.

The majority’s reading of § 1.6031(a)-1(e) is also 

perplexing in light of § 1.6031(a)-1(a)(4), which penalizes 

partnerships that file untimely returns. See id. (citing 

26 U.S.C. §§ 6698(a)(1), 7203 (2000)). The majority’s 

conclusion that untimely returns are not governed by the 

regulations, would, if true, mean that untimely returns are 

not subject to penalties. This reasoning effectively reads 

§ 1.6031(a)-1(a)(4) and 26 U.S.C. §§ 6698(a)(1), 7203 out 

of existence, creating the absurd result that only timely 

returns must comply with the requirement to timely submit 

returns, while untimely returns cannot be penalized for being 

untimely. See Maj. Op. 13–15. We disfavor interpretations 

that render statutes totally ineffectual or give rise to absurd 

results. See Ariz. State Bd. for Charter Schs. v. U.S. Dep’t 

of Educ., 464 F.3d 1003, 1007–08 (9th Cir. 2006) (observing 

that “statutory interpretations which would produce absurd 

results are to be avoided” and that in interpreting a statute it 
36 SEAVIEW TRADING V. CIR

is for this court to “ascertain—neither to add nor subtract, 

neither to delete nor to distort” the text (internal quotation 

marks omitted)).

3.

Apart from being unsupported by any legal authority and 

starkly inconsistent with the statutory and regulatory text, 

the majority’s reasoning in support of its theory is 

nonsensical.

As an initial matter, it makes no sense to treat the time 

requirements as unlinked to the place requirements. Under 

the majority’s reasoning, one might just as easily conclude 

that § 1.6031(a)-1(e) governs only returns filed at the correct 

place, and that therefore returns submitted to other locations 

can be submitted on any timeline because, after all, the 

regulations are “silent” about the time requirements of 

returns submitted to the incorrect location. Maj. Op. 20. 

Such a reading, of course, would be absurd. The point of 

§ 6230(i) and § 1.6031(a)-1(e), read together, is that to 

properly file a return, a partnership must file it at the 

prescribed location by the prescribed date. It would do 

taxpayers little good to have a deadline without knowing 

where to submit the return, or vice versa. The two provisions 

are linked, and, by the plain text of § 6230(i) and 

§ 1.6031(a)-1(e), both place and time conditions are 

required.

Additionally, to support the proposition that “the 

regulations do not appear to govern” a belatedly-filed tax 

return, the majority observes that “[n]othing in the text says 

that the time and place requirements apply to untimely 

returns.” Maj. Op. 13 That is true. But the regulation also 

does not say that it applies to timely returns. The regulation 

says when and where a partnership must file its returns. 
SEAVIEW TRADING V. CIR 37

26 U.S.C. § 6230(i) (2000); 26 C.F.R. § 1.6031(a)-1(e) 

(2001). It does not separate timely and untimely returns into 

different categories. And why would it? The very notion of 

what an untimely return is derives entirely from the text of 

§ 1.6031(a)-1(e). In other words, a return is untimely only 

if it fails to comply with the timing requirements of the 

regulation.

The majority also reasons that “by definition, if a 

taxpayer files a return after April 15, the taxpayer can’t 

comply with § 1.6031(a)-1(e) since the regulation specifies 

that date as when the return ‘must be filed.’” Maj. Op. 13. 

It is unclear what significance the majority places on this 

observation. Of course, it is a tautology that when someone 

does not comply with the terms of a regulation, she “can’t 

comply” with it because, well, she has not complied with it. 

Moreover, we do not construe statutes and regulations to 

apply only to those who comply with their provisions; 

indeed, the law applies most acutely to those who do not 

follow it. Nor do we generally excuse compliance with one 

provision based on noncompliance with another. And yet, 

the upshot of the majority’s holding is that those who timely 

file their returns are subject to all the regulations, while those 

who do not are shielded from statutory and regulatory 

consequences.

To illustrate why the majority’s approach cannot be

correct, consider a hypothetical traffic statute. Suppose that 

a jurisdiction enacted a statute that stated:

When operating a motor vehicle, all drivers 

must:

(1) Stop at signs marked “STOP.”

(2) Obey posted speed limits.
38 SEAVIEW TRADING V. CIR

Now consider a driver in this hypothetical jurisdiction who, 

while driving 80 mph in a 30-mph zone, is pulled over for 

running a stop sign. Under the majority’s reasoning, the 

driver could defend himself by arguing that the statute “is 

silent” about his conduct because it applies only to drivers 

obeying the speed limit. “Speeding drivers,” the driver 

might argue, “do not appear to be governed” by the statute 

because a person can comply with the statute only by 

obeying the posted speed limit, and he has not done so. One 

would not expect such an argument to get very far with the 

traffic court. Yet the majority adopts this argument in the 

tax context.4

4 The majority attempts to distinguish this hypothetical from 

§ 1.6031(a)-1(e) by arguing that the hypothetical traffic statute “contains 

two independent commands,” which, to the majority, means that 

“[v]iolation of either command violates the law,” while § 1.6031(a)-1(e) 

“establishes two conditions necessary to comply with the filing 

command.” Maj. Op. 15 n.2. The majority seems to overlook that the 

punctuation and structure used in the hypothetical traffic statute are 

precisely the same as that used in § 1.6031(a)-1(e), which also contains 

separate, independent time and place commands separated by periods 

and subsection headings. See 26 C.F.R. § 1.6031(a)-1(e). I agree with 

the majority’s recognition that to satisfy § 1.6031(a)-1(e), a partnership 

must comply with both time and place provisions, Maj. Op. 15 n.2, which 

is why Seaview failed to file a return in this case, because it complied 

with neither. The same, of course, is true of the hypothetical traffic 

statute: to comply with the statute, a driver has to obey speed limits and 

stop at stop signs. Once again, the majority reasons that because Seaview 

did not obey the regulation, it is not subject to the regulation. Maj. Op. 

15 n.2.

The majority also asks “what is a driver supposed to do if a police 

officer directs the driver to blow through a STOP sign? Can the driver 

be cited for complying with the police officer’s command . . . ?” Maj. 

Op. 15 n.2. The hypothetical question of whether instruction from a 

police officer might be a defense to traffic liability is, of course, not 
SEAVIEW TRADING V. CIR 39

Simply put, delinquency under one provision of the 

regulation does not render another provision inapplicable. 

The effect of the majority’s ruling is to excuse delinquent 

filers from the necessity of complying with the remainder of 

the regulations. Lawbreakers everywhere may rejoice when 

they learn that by not complying with one part of a statute or 

regulation, the rest of the statute or regulation is rendered 

“silent.” The majority opinion is tellingly free of any 

citation supporting this sui generis interpretation of the Code 

and regulations.

4.

Similarly, the majority’s conclusion that § 1.6031(a)-

1(e)’s place, time, and manner filing requirements apply 

only to timely returns is flatly inconsistent with the rest of 

§ 1.6031(a)-1’s provisions, which clearly apply to both 

timely and delinquent partnership returns.

For example, § 1.6031(a)-1(a)(1) requires the filing of 

returns for domestic partnerships, stating that “every 

domestic partnership must file a return of partnership income 

under section 6031 (partnership return) for each taxable year 

on the form prescribed for the partnership return.” 26 C.F.R. 

§ 1.6031(a)-1(a)(1) (2001). But under the majority’s 

conclusion that delinquent returns are ungoverned by the 

IRS regulations, only timely returns would need to be filed 

“for each taxable year on the form prescribed.” Id. In other 

before us. In any event, as discussed below, the IRS in this case did not 

“command” Seaview to file a tax return, but asked for copies as part of 

its investigation. There is no indication in the record that Seaview 

thought that in complying with this request it was filing a return; indeed, 

the record suggests the opposite. As noted, and discussed further below, 

the majority seems to covertly apply a form of equitable estoppel, which, 

if properly and openly applied, would fail on the facts of this case.
40 SEAVIEW TRADING V. CIR

words, the implication of the majority’s reasoning is that 

partnerships that file returns late need not file partnership 

returns at all. See United States v. LKAV, 712 F.3d 436, 440 

(9th Cir. 2013) (“[S]tatutory interpretations which would 

produce absurd results are to be avoided.” (alteration in 

original) (internal quotation marks omitted)).

Another subsection of the regulation, § 1.6031(a)-

1(a)(2), prescribes the contents of a partnership return. Id. 

§ 1.6031(a)-1(a)(2). But under the majority’s interpretation, 

this regulation would only govern the contents of timelyfiled returns. Presumably, for the majority, there are no 

regulations that prescribe the contents of a delinquent 

partnership return.

And, as previously noted, § 1.6031(a)-1(a)(4) provides 

that there are consequences for “[f]ailure to file” a return and 

cross references several statutory provisions. Id. 

§ 1.6031(a)-1(a)(4) (citing 26 U.S.C. §§ 6229(a), 6231(f), 

6698, 7203 (2000)). Under the majority’s construction of 

the regulation, none of these consequences would apply to 

delinquent returns because the regulation applies only to 

timely returns. And yet these consequences self-evidently 

are meant to apply to returns that are not filed on time. 

Indeed, if the majority is correct that the regulations do not 

govern the filing of untimely returns, then some of these 

provisions would effectively be read out of the Tax Code. 

See, e.g., 26 U.S.C. § 6231(f) (2000) (penalizing 

noncompliance with § 6031, which provides, among other 

things, that partnerships are required to furnish a return to 

certain partners “on or before the day on which the return for 

such taxable year was required to be filed,” see id. 

§ 6031(b)); id. § 6698(a) (penalizing a partnership that “fails 

to file [a] return at the time prescribed therefor”); id. § 7203 
SEAVIEW TRADING V. CIR 41

(penalizing willful failure to pay tax “at the time or times 

required by law or regulations”).

The majority attempts to evade these problematic 

implications for the structure of the regulations by arguing 

that the Tax Code penalizes the failure to file a return at the 

wrong time “but doesn’t specify any penalty for filing a 

return at the wrong place.” Maj. Op. 12–13 (citing 26 U.S.C. 

§§ 6698(a)(1), 7203). But even if § 6698 were read to only 

impose monetary penalties for failing to file a timely return, 

and if § 7203 were read to criminalize only the willful failure 

to file a timely return, the question of where the return must 

be timely filed would remain. If a taxpayer mails a return to 

NASA or the United States Fish and Wildlife Service, the 

IRS need hardly impose a separate monetary or criminal 

penalty for filing in the wrong place. And it would not make 

any difference if the taxpayer mailed a return to NASA or 

Fish and Wildlife by the regulatory deadline. Instead, if the 

taxpayer submitted a return to the wrong location, and never 

submitted a return to the correct location, the IRS simply 

would not regard the return as having been filed. It is a 

matter of common sense and an acquaintance with reality to 

recognize that when a statute penalizes failure to timely file, 

it encompasses failing to file at all by filing in the wrong 

place.

5.

The majority also attempts to bolster its position by 

pointing out that “no IRS regulation prohibits the filing of 

untimely returns with a requesting IRS official.” Maj. 

Op. 13. But the regulation need not list the infinite number 

of wrong ways to file a return. The regulations also do not 

prohibit the filing of a return by sending it in a letter 

personally addressed to the President of the United States. 

But I doubt we would have much sympathy for a taxpayer 
42 SEAVIEW TRADING V. CIR

who followed such a method and complained that the IRS 

did not treat his return as filed.

The regulations prescribe when and where a taxpayer 

shall file a return, and Congress has made compliance with 

those requirements mandatory. 26 U.S.C. § 6230(i) (2000); 

26 C.F.R. § 1.6031(a)-1(e) (2001). By necessary negative 

implication, all other times and places of filing are not in 

compliance. See Silvers v. Sony Pictures Ent., Inc., 402 F.3d 

881, 885 (9th Cir. 2005) (“The doctrine of expressio unius 

est exclusio alterius as applied to statutory interpretation 

creates a presumption that when a statute designates certain 

persons, things, or manners of operation, all omissions 

should be understood as exclusions.” (internal quotation 

marks omitted)).

Similarly, the majority’s contention that “there is more 

than one place for a partnership to properly file a return” 

hurts, rather than helps, its theory. Maj. Op. 13 (citing 

26 U.S.C. § 6091(b)(4); 26 C.F.R. § 1.6091-2(d)(1)). The 

majority points to the regulation that provides the places for 

filing returns by various taxpayers, such as individuals, 

estates, trusts, and corporations. See 26 C.F.R. § 1.6091-

2(a)–(b). Notably, that regulation also provides that 

“whenever instructions applicable to income tax returns 

provide that the returns be filed with a service center, the 

returns must be so filed in accordance with the instructions.” 

Id. § 1.6091-2(c). The regulation provides that “persons 

other than corporations” and “corporations” may file returns 

by hand carrying them to the district director of the internal 

revenue district in which the taxpayer resides. Id. § 1.6091-

2(d).

But even assuming Seaview could have hand-carried its 

return to an IRS office, instead of or in addition to mailing 

its return to the Ogden service center, see 26 U.S.C. 
SEAVIEW TRADING V. CIR 43

§ 6091(b)(4); 26 C.F.R. § 1.6091–2(d)(1), Seaview nowhere 

argues that it did so or that it attempted to do so. And 

although the Tax Code and regulations enumerate specific 

locations and methods for filing a return, that does not 

suggest that an infinite set of other locations and methods 

(such as mailing a copy to an IRS agent) might be 

permissible; it suggests the opposite. See Silvers, 402 F.3d 

at 885; see also Scalia & Garner, supra, at 107–08 (noting 

that “the principle that specification of the one implies 

exclusion of the other validly describes how people express 

themselves and understand verbal expression” and that the 

“more specific the enumeration, the greater the force of” this 

principle). Congress has permitted the Secretary of the 

Treasury to create regulations providing for the place, time, 

and manner of filing tax returns, and made it mandatory for 

the taxpayer to comply with those regulations. By necessary 

negative implication, other places, times, and manners are 

improper.

6.

The final reason to doubt the majority’s conclusion that 

the Tax Code and regulations are silent regarding delinquent 

returns is the sheer implausibility of that position. Late-filed 

tax returns are far from an uncommon occurrence.5

 It is 

5 As Seaview acknowledges, “[d]elinquent returns are 

commonplace.” Statistics available on IRS’s public website show that 

the IRS assesses billions of dollars per year from delinquent returns. See 

IRS, SOI Tax Stats - Delinquent Collection Activities - IRS Data Book 

Table 25, https://www.irs.gov/statistics/soi-tax-stats-delinquentcollection-activities-irs-data-book-table-25 (last visited May 2, 2022); 

see also Robert E. McKenzie, 7 Million Taxpayers Fail to File Their 

Income Taxes, Forbes (Aug. 27, 2014, 2:37 AM), 

https://www.forbes.com/sites/irswatch/2014/08/27/7-million-taxpayersfail-to-file-their-income-taxes/?sh=78c4921a706f.
44 SEAVIEW TRADING V. CIR

therefore hard to believe that § 6230(i) or § 1.6031(a)-1(e) 

are not meant to apply to delinquent returns, and that 

Congress and the Secretary of the Treasury simply 

overlooked this all too common and predictable occurrence. 

If the statute and regulations were truly silent on the correct 

procedures for filing delinquent returns, every year from 

April 16 on would be a tax-filing free-for-all. Tellingly, the 

majority opinion is unique in reaching this conclusion.

* * *

The majority’s reading of § 6230(i) and § 1.6031(a)-1(e) 

is plainly incorrect. The remainder of the majority’s 

reasoning is built on this foundation, as the majority admits, 

Maj. Op. 13, 20. so the majority opinion fails for this reason 

alone. Nonetheless, I address why the remainder of the 

majority’s reasoning fails even if this foundational flaw is 

overlooked.

B.

1.

Once the majority determines that 26 C.F.R. 

§ 1.6031(a)-1(e) does not govern untimely returns, it frees 

itself to supply its own requirements for filing delinquent 

partnership returns based on the “ordinary meaning” of the 

term “file.” Maj. Op. 14–15. Like the faulty statutory and 

regulatory interpretation on which it is based, this conclusion 

is riddled with errors.

First, it bears repeating that there is simply no cause for 

this court to look to the ordinary meaning of the term “file” 

when, as set forth above, the statute and regulations already 

clearly set forth the filing requirements for partnership 

returns.
SEAVIEW TRADING V. CIR 45

Second, even if there were some kind of legislative or 

regulatory gap in this area, it is not this (or any) court’s role 

to supply an absent provision or create an exception not 

provided by Congress. “It is a fundamental principle of 

statutory interpretation that absent provision[s] cannot be 

supplied by the courts.” Little Sisters of the Poor Saints 

Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 

(2020) (alteration in original) (internal quotation marks 

omitted); see also Scalia & Garner, supra, at 93 (“It is not 

[the judge’s] function or within his power to enlarge or 

improve or change the law. Nor should the judge elaborate 

unprovided-for exceptions to a text . . . .” (footnote and 

internal quotation marks omitted)). The majority runs afoul 

of this fundamental principle by finding a regulatory gap of 

its own making and then filling it with a wholly invented, 

court-created exception to ordinary filing rules for 

delinquent partnership returns. Maj. Op. 10, 15, 21. 

Regardless of the merits of its new rule, the majority violates 

basic legal principles in creating it.

Third, the majority’s new rule for delinquent returns 

contradicts the language from the very authorities it cites in 

defining the word “file.” For example, in United States v. 

Lombardo, 241 U.S. 73 (1916), the Court held that a “paper 

is filed when it is delivered to the proper official and by him 

received and filed.” 241 U.S. at 76 (emphases added). This 

is precisely the rule that Seaview has indisputably failed to 

satisfy. Its return was never delivered to, or received by, the 

proper official. Seaview sent copies of its return to an IRS 

revenue agent and IRS counsel, and—undisputedly—not to 

the Ogden service center. This means that the returns were 

not delivered to the “proper official” and were not “by [that 

official] received.” Lombardo, 241 U.S. at 76; see also, e.g., 

Smyth v. Comm’r, 113 T.C.M. (CCH) 1132, at *3 (2017) 

(delivery to IRS counsel is not a filing); Friedmann v. 
46 SEAVIEW TRADING V. CIR

Comm’r, 82 T.C.M. (CCH) 381, at *6–7 (2001) (delivery to 

a revenue agent is not a filing).

Other authorities relied upon by the majority similarly 

include as part of their definitions of “file” that the return 

must be “delivered to, received and filed by the proper

official.” Heard v. Comm’r, 269 F.2d 911, 913 (3d Cir. 

1959) (emphasis added); see also Maj. Op. 14–15 (citing 

File, Black’s Law Dictionary (5th ed. 1979) for proposition 

that to file is “[t]o deliver an instrument . . . to the proper 

officer” (alterations in original)). As explained later, the 

majority’s attempt to sidestep this difficulty by redefining 

what counts as a proper official, see Maj. Op. 10–10, 21 n.4,

is unpersuasive in light of the large body of case law 

rejecting revenue agents or IRS counsel as proper officials, 

among other reasons.

Similarly, the majority’s reliance on United States v. 

Hanson, 2 F.3d 942 (9th Cir. 1993), does little to support its 

ordinary meaning definition. Maj. Op. 15 In Hanson, the 

defendant was criminally prosecuted for filing a false tax 

return under 26 U.S.C. § 7206(1). Id. at 944. The defendant 

argued on appeal that the allegedly false forms “were not 

‘filed’ because they were never fully processed by the IRS.” 

Id. at 946. We rejected this argument, observing that 

“Hanson personally mailed the forms and . . . the IRS 

received them.” Id. We held that a “return is ‘filed’ at the 

time it is delivered to the IRS.” Id.

At first blush, Hanson’s terse definition of “file” might 

appear to help the majority’s argument. After all, Seaview 

“delivered” its return “to the IRS” when it sent copies of its 

returns in 2005 and 2007. Id. But in Hanson, the court was 

not asked to decide whether a return sent to the wrong 

location and not processed as a return was “filed.” The 

defendant argued simply that because the IRS “never fully 
SEAVIEW TRADING V. CIR 47

processed” his returns, he did not file them and could not be 

criminally liable for filing a false return. Id. The court did 

not explain what was meant by “never fully processed,” and, 

unlike here, the government did not argue that the returns 

were not sent to the correct location. See id. Indeed, the 

facts suggested that the defendant submitted his fraudulent 

returns to the correct location. See id. at 944–45. Thus, 

Hanson cannot reasonably be read to suggest that a taxpayer 

may properly file a return other than by sending it to the 

correct location.

Furthermore, given the criminal nature of the charge 

against the defendant in Hanson, whether the returns were 

processed was not particularly relevant, because the issue 

was whether the defendant “[w]illfully ma[de] and 

subscribe[d] any return . . . under the penalties of perjury . . . 

which he d[id] not believe to be true and correct as to every 

material matter.” 26 U.S.C. § 7206(1) (1988). 

Unsurprisingly, in a criminal prosecution for such an 

offense, the emphasis was on the defendant’s conduct and 

state of mind, rather than on whether the IRS “fully 

processed” his returns, and the court rejected the defendant’s 

argument without extensive analysis. See Hanson, 2 F.3d 

at 946.6

6 Subsequent interpretations of Hanson raise further doubts about 

the application of its definition of “file” to the facts of this appeal. See

United States v. Boitano, 796 F.3d 1160, 1163–64 (9th Cir. 2015). In

Boitano, the defendant had “handed” delinquent tax returns to an IRS 

enforcement agent, the IRS agent never sent the returns “to the IRS 

service center for processing,” and, after the information in those returns 

was determined to be fraudulent, the defendant was charged with 

violating § 7206(1). Id. at 1161–62. Before the district court, the 

government argued that the defendant had filed the returns by handing 

them to the agent. Id. at 1162. But, on appeal, the government took the 
48 SEAVIEW TRADING V. CIR

2.

Even if the Tax Code and regulations did not foreclose 

the majority’s reliance on the “ordinary meaning” of “file” 

(which they do), and even if it were proper for us to devise 

our own filing regulation for delinquent returns (which it is 

not), and even if the majority’s ordinary meaning definition 

were supported by legal authority (which it is not), the 

majority’s ordinary meaning analysis would be problematic 

for another reason: the sweep of its implications.

The majority holds:

that when (1) an IRS official 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 official the tax 

return in the manner requested, and (3) the 

IRS official receives the tax return, the 

partnership has “filed” a tax return for 

§ 6229(a) purposes.

position that “there is a single definition of filing that applies in both the 

civil and criminal context, and that the record does not support that the 

returns here were filed.” Id. at 1163 (internal quotation marks omitted). 

The government repudiated its position in the district court that the 

returns were “filed” when handed to the agent. Id. Given the 

government’s concession, we did not have to decide the correct meaning 

of “file” in Boitano. Id. at 1164. Nonetheless, we accepted the 

government’s concession that handing a return to a revenue agent did not 

constitute a filing. The implication is that giving a return to someone 

other than the proper official, who in turn does not send “the returns to 

the IRS service center for processing,” does not count as “filing” the 

return. Id. at 1161, 1163–64.
SEAVIEW TRADING V. CIR 49

Maj. Op. 10–10. The implication of the majority’s reasoning 

is that this three-part test is just one of a broader set of valid 

ways to file delinquent returns. To the majority, there are 

any number of places to file a delinquent return as long as it 

is “delivered to a proper IRS official and the official received 

the return.” Maj. Op. 15. This holding is untethered from 

the statutory and regulatory text and does little to guide 

taxpayers, the IRS, and the Tax Court. See Maj. Op. 10–10,

15–15.

To be sure, the majority appears to narrow its holding by 

limiting its application to instances where an IRS employee 

requests a delinquent return from a partnership7 (which 

could conceivably happen in every case in which a 

partnership fails to file a return), and where the partnership 

sends the return to an IRS employee “authorized” to accept 

the returns. Maj. Op. 10–10, 15–15, 19. But the majority 

does not define “an authorized” employee, and instead 

improperly cites a non-precedential IRS internal 

memorandum to suggest that employees at certain pay 

grades may be authorized to process delinquent returns. 

Maj. Op. 21 n.4 (citing IRS, National Office Advice No. 

199933039 (June 25, 1999)). The Tax Code explicitly 

provides that such internal memoranda “may not be used or 

7 Although the majority uses the term partnership, thereby 

seemingly limiting its holding to partnership returns governed by 

26 U.S.C. § 6229 (2000), the majority does not explain why the 

sweeping rule it devises may or may not extend to individual tax returns 

governed by 26 U.S.C. § 6501’s statute of limitations, which is similar 

in material respects to that of § 6229. Compare 26 U.S.C. § 6501(a), (c), 

with 26 U.S.C. § 6229(a), (c) (2000). Elsewhere the majority indicates 

that the analysis of individual and partnership returns is the same. Maj. 

Op. 18 n.3. Presumably the majority is reassured that this Pandora’s box 

will be for taxpayers, the IRS, and the Tax Court to address in the first 

instance.
50 SEAVIEW TRADING V. CIR

cited as precedent,” 26 U.S.C. § 6110(k)(3), and, as the 

majority elsewhere acknowledges, such materials lack the 

force of law. See Fargo, 447 F.3d at 713; Maj. Op. 16. 

Nonetheless, the majority asserts that in this memorandum 

the IRS “held” that revenue officers at certain pay grades 

(GS-9, GS-11, and GS-12) may secure delinquent returns. 

Maj. Op. 21 n.4.

Even if we assume this memorandum applied in 2005 

and 2007, and that it had any precedential value, it is 

irrelevant to the issues before us now. The memorandum 

provides guidance to IRS district counsel about procedures 

applicable to individuals filing returns by hand carrying 

them “to the District Director of the internal revenue district 

in which they live.” IRS, National Office Advice No. 

199933039, at 2–3 (June 25, 1999) (explaining that the Tax 

Code and regulations allow “a person other than a 

corporation” to file their return by hand carrying it to the 

district director, or by mailing it to the appropriate service 

center (first citing 26 U.S.C. § 6091(b)(1)(A), (b)(4); then 

citing 26 C.F.R. § 1.6091-2(a)(1), (c), (d)(1))).

The memorandum then states that neither the Tax Code 

nor the regulations “specifically provide for filing returns 

directly with revenue officers.” Id. at 3. But it explains that 

delegations of authority (in that case, a delegation of the 

district director’s authority to receive hand-carried returns) 

“may take many forms, including functional statements in 

position descriptions.” Id. The memorandum reviews the 

position descriptions for revenue agents at pay scales GS-9, 

GS-11, and GS-12, and concludes that these descriptions are 

consistent with the revenue agents receiving hand-carried 

returns “as the revenue officers are acting on behalf of, and 

under the authority of, the District Director.” Id.
SEAVIEW TRADING V. CIR 51

Seaview nowhere argues that it hand-carried its return to 

the district director in the revenue district of its residence as 

an alternative, or in addition, to mailing its return to the 

appropriate service center, or that it attempted to do so. 

Thus, the majority’s reliance on this internal memorandum 

is misplaced, and its supposed limitations are no limitation 

at all. Instead of following the clear weight of legal authority 

in this area, the majority creates a morass for courts to wade 

through as parties litigate whether an IRS employee was 

“authorized to obtain and receive” a return. Maj. Op. 10. 

And, of course, this holding will apply only in the Ninth 

Circuit, undermining the “equal and certain administration” 

of our nationwide tax system and “leading to uncertainty and 

obvious forum shopping opportunities.” Ai v. United States, 

809 F.3d 503, 507 (9th Cir. 2015) (internal quotation marks 

omitted).

* * *

The statute and regulations leave no space for the 

majority to devise its own definition of “file” for delinquent 

returns. Even if there were such an opportunity, it is not our 

role to supply absent provisions or create exceptions not 

mandated by Congress. And even if we could turn to an 

ordinary meaning definition of “file,” the definition provided 

by the majority is inconsistent with the authorities on which 

it relies and will create a host of problems for taxpayers, the 

IRS, and the Tax Court when dealing with tax returns in our 

circuit.

C.

Logic and principles of statutory interpretation suffice to

foreclose the majority’s approach to § 6230(i) and 

§ 1.6031(a)-1(e). But if there remains any doubt about the 

correctness of the majority’s interpretation, the Supreme 
52 SEAVIEW TRADING V. CIR

Court’s decision in Badaracco slams the door firmly shut. 

464 U.S. 386. In Badaracco, the Court was asked to 

determine the applicability of 26 U.S.C. § 6501, which 

applies a three-year statute of limitations, like § 6229(a), 

unless the taxpayer fails to file a return or files “a false or 

fraudulent return with the intent to evade tax.” Id. at 388. 

Compare 26 U.S.C. § 6501(a), (c), with 26 U.S.C. § 6229(a), 

(c) (2000). The issue in Badaracco was whether the threeyear limitations period to assess taxes runs when the 

“taxpayer files a false or fraudulent return but later files a 

nonfraudulent amended return.” 464 U.S. at 388. The Court 

rejected the taxpayer’s argument and held that the IRS was 

permitted to assess “‘at any time’ the tax for a year in which 

the taxpayer has filed ‘a false or fraudulent return,’ despite 

any subsequent disclosure the taxpayer might make.” Id. at 

396.

In reaching that conclusion, the Court—unlike the 

majority here—rejected “a nonliteral construction of the 

statute based on considerations of policy and practicality.” 

Id. at 396–401. Even more significantly, however, the Court 

reaffirmed that “[s]tatutes of limitation sought to be applied 

to bar rights of the Government, must receive a strict 

construction in favor of the Government.” Id. at 391 

(quoting E.I. Dupont de Nemours & Co. v. Davis, 264 U.S. 

456, 462 (1924)). This rule of statutory construction applies 

with particular force in the tax context: “[L]imitations 

statutes barring the collection of taxes otherwise due and 

unpaid are strictly construed in favor of the Government.” 

Id. at 392 (quoting Lucia v. United States, 474 F.2d 565, 570 

(5th Cir. 1973)).

The majority hardly addresses this part of Badaracco’s 

holding, despite citing Badaracco later in its opinion for a 

different proposition. Maj. Op. 22 & [22] n.6. At the risk of 
SEAVIEW TRADING V. CIR 53

stating the obvious, we are bound by Badaracco. See MK 

Hillside Partners v. Comm’r, 826 F.3d 1200, 1206 (9th Cir. 

2016) (“[W]e are bound not only by the holdings of 

[Supreme Court] decisions but also by their mode of 

analysis.” (second alteration in original) (internal quotation 

marks omitted)); see also Hart v. Massanari, 266 F.3d 1155, 

1171 (9th Cir. 2001) (“Obviously, binding authority is very 

powerful medicine. A decision of the Supreme Court will 

control that corner of the law unless and until the Supreme 

Court itself overrules or modifies it. Judges of the inferior 

courts may voice their criticisms, but follow it they must.”).8

8 The majority attempts to distinguish Badaracco in a footnote, Maj. 

Op. 22 n.6, but it is hard to read itstreatment of this precedent as anything 

other than a departure from the Supreme Court’s “mode of analysis.” 

MK Hillside Partners, 826 F.3d at 1206. It is true that Badaracco dealt 

with fraudulent returns under § 6501(c)(1), but the majority overlooks 

that the relevant provisions of §§ 6501 and 6229 are nearly identical,

including in removing any statute of limitations when a fraudulent return 

is filed or when a taxpayer fails to file a return. Compare 26 U.S.C. 

§ 6501(c), with 26 U.S.C. § 6229(c) (2000). The majority denies that 

Badaracco’s statement of what was then (and is now) well-settled 

authority that statutes of limitation must be strictly construed in favor of 

the government, particularly in the tax context, was in fact its “actual 

holding.” But we have recognized this holding of Badaracco many 

times. See, e.g., California ex rel. Cal. Dep’t of Toxic Control v. Neville 

Chem. Co., 358 F.3d 661, 666 (9th Cir. 2004) (“[W]e have been specially 

instructed by the Supreme Court to construe limitations periods in favor 

of the government.”); Tosello v. United States, 210 F.3d 1125, 1127 (9th 

Cir. 2000) (“[T]he applicable statute of limitations . . . must be construed 

strictly in favor of the government.”); In re West, 5 F.3d 423, 426 (9th 

Cir. 1993) (observing this holding in the context of tax collection in 

bankruptcy); United States v. Dos Cabezas Corp., 995 F.2d 1486, 1489 

(9th Cir. 1993) (“[T]he court strictly construes the statute [of limitations] 

in favor of the government.”); FDIC v. Former Officers & Dirs. of 

Metro. Bank, 884 F.2d 1304, 1309 (9th Cir. 1989) (“To the extent that a 

statute is ambiguous in assigning a limitations period for a claim, we will 

interpret it in a light most favorable to the government.”). The majority 
54 SEAVIEW TRADING V. CIR

If we follow Badaracco, as we are required to do, and 

strictly construe the statute of limitations in the 

government’s favor, then it simply makes no sense to 

provide a different and more permissive tax filing regime for 

taxpayers who file their returns late. Ultimately, apart from 

a feeble attempt to distinguish Badaracco’s “actual” 

holding, Maj. Op. 22 n.6, the majority has no answer for how 

its idiosyncratic interpretation of the statute and regulations 

in this case can be reconciled with our obligation to “strictly 

construe[]” § 6229’s limitation period “in favor of the 

government.” Badaracco, 464 U.S. at 392. See also Pac. 

Coast Steel Co. v. McLaughlin, 61 F.2d 73, 75 (9th Cir. 

1932) (“Statutes of limitation barring the collection of taxes 

that are justly due and unpaid must receive a strict 

construction in favor of the government, and limitation in 

such cases will not be presumed, in the absence of clear 

Congressional action.”), aff’d, 288 U.S. 426 (1933); Parrott 

v. McLaughlin, 67 F.2d 397, 398–99 (9th Cir. 1933) 

(observing that, unlike statutes levying taxes, which are 

construed against the government, statutes of limitations 

“applied to bar rights of the government . . . must receive a 

strict construction in favor of the government”).

Moreover, in cases considering similar issues, courts 

have uniformly failed to excuse delinquent returns from the 

filing requirements to which all taxpayers are subject. See, 

later seems to recognize that Badaracco requires us to strictly construe 

§ 6229’s statute of limitations, but argues that does not mean “we must 

give the government carte blanche to apply § 6229 however and 

whenever it wants.” Maj. Op. 22 n.6. The majority does not explain 

how faithfully applying the statute, regulations, and Supreme Court 

precedent amounts to allowing the government to apply the statute of 

limitations however and whenever it wants. The majority seems to think 

we have carte blanche to make our own rules that flagrantly contravene 

the statute, regulations, and Supreme Court authority. We do not.
SEAVIEW TRADING V. CIR 55

e.g., Allnutt, 523 F.3d at 407–10, 412–13 (applying the 

meticulous compliance standard to filing of delinquent 

returns); Friedmann, 82 T.C.M. (CCH) 381, at *2, 6–7 

(same); Green v. Comm’r, 65 T.C.M. (CCH) 2347, at *7 

(1993) (“[G]iving a delinquent return to an IRS agent does 

not constitute filing.” (emphasis added)). Tellingly, the 

majority does not cite any legal authority supporting its 

reasoning that § 6230(i) and § 1.6031(a)-1(e) by their terms 

do not apply to delinquent returns, nor does it reckon with 

the ample authorities that foreclose its interpretation. See 

Maj. Op. 13.

II.

With no support in the text of the Tax Code or IRS 

regulations for its desired outcome, the majority relies 

largely on internal IRS guidance which, the majority 

acknowledges, lacks the force of law and does not confer 

rights on taxpayers.9

 See Fargo, 447 F.3d at 713; Maj. 

Op. 16. Despite this frank and correct admission, the 

majority devotes a substantial portion of its opinion to 

analyzing this guidance. Maj. Op. 16–19. I would sooner 

adhere to the law. See Disabled Am. Veterans v. Comm’r, 

942 F.2d 309, 315 n.5 (6th Cir. 1991) (stating that IRS 

9 Specifically, the majority cites three documents: (1) IRS, Chief 

Counsel Advice No. 199933039 (June 25, 1999) (addressing whether a 

district director’s authority to accept certain hand-carried returns can be 

delegated to revenue agents); (2) IRS Internal Revenue Manual, ch. 4.4

(2005) (listing procedures for processing delinquent returns and 

substitute for returns, including sending the return package “to the 

appropriate campus”); and (3) IRS Policy Statement 5-133 (2006)

(stating that absent indications 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,” but containing no 

information about how or where such returns are accepted or processed). 

Maj. Op. 16–19.
56 SEAVIEW TRADING V. CIR

counsel memoranda “are of no precedential value, and we 

are not prepared to rest a specific interpretation of a law 

passed by Congress on what may be nothing more than the 

general considerations of [IRS] employees”); see also 26 

U.S.C. § 6110(k)(3) (providing that IRS internal memoranda 

“may not be used or cited as precedent”).

But even if we were to accept that IRS internal guidance 

could affect the outcome in this case, the guidance would 

actually weigh against finding that Seaview’s return was 

filed. That is because, as the majority asserts, this guidance 

instructs IRS agents to send the delinquent return package to 

the appropriate service center for processing.10 Internal 

Revenue Manual 4.4.9.7.3 (2005); Maj. Op. 17. In other 

words, the guidance itself is consistent with the wellestablished legal proposition that a return must be received 

at the appropriate service center to be considered filed. In 

this case, of course, there is no evidence that the return ever 

was sent to the Ogden service center.

Therefore, at most, the IRS in this case did not comply 

with its own internal guidance. The majority cites no legal 

authority whatsoever for the proposition that the IRS’s 

failure to adhere to this guidance has any bearing on the 

merits of Seaview’s appeal. Instead, the majority’s outcome 

rests on what it sees as the IRS’s “troubling” inconsistency, 

concluding that “the IRS views the law one way as an 

internal matter and another way for litigation advantage,” 

which the majority believes is a “nonsensical position” that 

is inconsistent with “common sense.” Maj. Op. 6–7, 16, 19. 

10 See also IRS, Chief Counsel Advice No. 199933039 (June 25, 

1999) (stating that “whenever instructions applicable to income tax 

returns provide that the returns be filed with a service center, the returns 

must be so filed in accordance with the instructions”).
SEAVIEW TRADING V. CIR 57

In other words, as noted, the majority takes issue with the 

IRS’s perceived unfairness to Seaview.

It should go without saying that our views of the equities 

of the parties’ conduct in this case do not control the 

outcome. Instead, this court is guided by the decision of 

Congress to empower the Secretary of the Treasury to 

promulgate regulations with which taxpayers must comply 

to file their returns. 26 U.S.C. § 6230(i) (2000); see 

Anderson v. Wilson, 289 U.S. 20, 27 (1933) (Cardozo, J.) 

(“We do not pause to consider whether a statute differently 

conceived and framed would yield results more consonant 

with fairness and reason. We take the statute as we find it.”). 

To the extent that the majority thinks the operation of the 

Tax Code and regulations results in an unfair outcome, it is 

not within our purview to change the law to suit our own 

preferences. Badaracco, 464 U.S. at 398 (“Courts are not 

authorized to rewrite a statute because they might deem its 

effects susceptible of improvement.”).

We must also reject any suggestion that the government 

should be equitably estopped from asserting that Seaview 

did not file its 2001 partnership return and, thus, that the 

statute of limitations for assessing taxes did not apply. 

Granted, the majority does not explicitly argue that the 

government should be estopped from adjusting Seaview’s 

return. But its objection to simply holding Seaview to 

compliance with the filing regulations—because IRS 

employees requested and received a copy of the return but 

did not forward it to the service center for processing—

suggests that the majority is impliedly applying a form of 

estoppel. See generally Maj. Op. 6, 16–19.

“The traditional elements of an equitable estoppel claim 

include (1) the party to be estopped must know the facts; 

(2) he must intend that his conduct shall be acted on or must 
58 SEAVIEW TRADING V. CIR

so act that the party asserting the estoppel has a right to 

believe it is so intended; (3) the latter must be ignorant of the 

true facts; and (4) he must rely on the former’s conduct to 

his injury.” Baccei v. United States, 632 F.3d 1140, 1147 

(9th Cir. 2011) (internal quotation marks omitted). Seaview 

does not argue that it was aware of the IRS’s internal 

guidance, much less that it relied upon these memoranda and 

manual sections. It thus cannot establish the traditional 

elements of estoppel.

Moreover, while “the Supreme Court has never 

categorically foreclosed estoppel against the government 

. . . , it has ‘reversed every finding of estoppel that [it has] 

reviewed.’” Indus. Customers of Nw. Utils. v. Bonneville 

Power, 767 F.3d 912, 927 (9th Cir. 2014) (second alteration 

in original) (quoting Off. of Pers. Mgmt. v. Richmond, 

496 U.S. 414, 422 (1990)). And even if estoppel applies to 

the government, a party claiming estoppel in this context 

must show, in addition to the traditional elements, that 

“(1) the government engaged in affirmative misconduct 

going beyond mere negligence; (2) the government’s 

wrongful acts will cause a serious injustice; and (3) the 

public’s interest will not suffer undue damage by imposition 

of estoppel.” Baccei, 632 F.3d at 1147.

Seaview cannot establish that the IRS engaged in 

affirmative misconduct. “Affirmative misconduct on the 

part of the government requires an affirmative 

misrepresentation or affirmative concealment of a material 

fact . . . .” Id. Seaview does not contend that the IRS misled 

it through misrepresentations or concealed material facts.

In any event, even the majority’s characterization of the 

record in this case misses the mark. For the record evinces 

no intent on Seaview’s part to file its returns as delinquent 

returns in 2005 or 2007. Instead, the record demonstrates 
SEAVIEW TRADING V. CIR 59

that in 2005, the IRS informed Seaview that it had “not 

received [its] federal income tax return(s)” for the 2001 tax 

year. Then, consistent with its position that the return had 

been filed in 2002, Seaview faxed the IRS “the 2001 tax 

return for Seaview Trading LLC as well as the certified 

mailing.” Two years later, Seaview mailed “a copy of the 

Seaview Trading, LLC’s retained copy of its 2001 Form 

1065” to IRS counsel.

Of note, nothing in these communications suggests that 

Seaview wanted the IRS to treat the fax or mailing as a filing. 

Seaview did not inquire about what it should do to ensure 

that the return was treated as filed, nor did it ask that the IRS 

forward the return to the Ogden service center, even though 

it knew that was the correct location for filing. Instead, 

Seaview, a wealthy and sophisticated taxpayer advised by 

accountants and tax lawyers at a national law firm, 

consistently maintained that its return had been filed years 

earlier.

This strategy, had it succeeded, could have exonerated 

Seaview from any tax liability arising from the adjustment 

of the 2001 partnership return because the statute of 

limitations would have run before the IRS even informed 

Seaview that it had never received the return. Thus, 

Seaview’s consistent position of a July 2002 filing, 

abandoned only years later after litigating this matter in the 

Tax Court, could have prevented any adjustment or penalties 

by the time the IRS requested information on the return in 

July 2005. See 26 U.S.C. § 6229(a) (2000). It should 

therefore come as no surprise that the record demonstrates 

no intention whatsoever that the 2005 and 2007 submissions 

be treated as filings. Seaview’s position was that the statute 

of limitations had already run by that point. Filing the 

returns in 2005 or 2007 might have risked late-filing 
60 SEAVIEW TRADING V. CIR

penalties and starting the statute of limitations at that time, 

rather than in 2002. See 26 C.F.R. § 1.6031(a)-1(a)(4) 

(2001).

The umbrage the majority seems to take with the IRS’s 

position is therefore misplaced. See Maj. Op. 6–7, 19. 

Assuming for the sake of argument that it is appropriate to 

consider questions regarding the parties’ intent, see, e.g.,

Allnutt, 523 F.3d at 413 n.5, the record does not support the 

notion that Seaview wanted to file its 2001 return in 2005 or 

2007. It thus makes no sense to fault the IRS for not taking 

any steps to treat the copies of Seaview’s return as anything 

other than retained copies of previously filed returns.

This might be a different case if Seaview had requested 

the IRS to treat the submissions as filings—including as 

protective filings, which the government asserts would be a 

valid way to ensure the returns were filed in 2005 or 2007 

while not abandoning the position that they had properly 

been filed in 2002. And under Tax Court precedent, as 

discussed more fully below, had the return been forwarded 

to the Ogden service center and processed there, then the 

statute of limitations would have run from that date. Winnett 

v. Comm’r, 96 T.C. 802, 807–08 (1991). But these facts are 

not present here.11

11 Seaview disputes that it could have submitted a “protective 

filing,” arguing that such a filing “appears to be something the IRS 

invented just for this case.” But in other contexts, the IRS has recognized 

“protective claims” as a way to preserve a taxpayer’s right to a tax refund 

“when the taxpayer’s right to the refund is contingent on future events 

and may not be determinable until after the statute of limitations 

expires.” Office of Chief Counsel, IRS, Memorandum: Protective 

Claims, at 3 (Aug. 5, 2005) (collecting cases). The record also reflects 

that Seaview’s tax matters partner, AGK Investments, LLC, filed two 
SEAVIEW TRADING V. CIR 61

Fundamentally, however, such considerations do not 

control the outcome of this case. This matter is instead 

controlled by the Tax Code and IRS regulations, as discussed 

above, and binding and persuasive case law, which I address 

next.

III.

A more in-depth review of the case law in this area 

further demonstrates the many flaws in the majority’s 

approach. But before looking to the legion of on-point cases 

regarding filing requirements and the statute of limitations, 

it is worth considering how we are required to approach 

these precedents.

A.

To begin with, we have long recognized that, although 

our review of Tax Court decisions is de novo, we “generally 

defer[]” to Tax Court decisions, “and will not disagree with 

that court unless an unmistakable question of law so 

mandates.” First Charter Fin. Corp. v. United States, 

669 F.2d 1342, 1345 (9th Cir. 1982); see also Gragg v. 

United States, 831 F.3d 1189, 1192 (9th Cir. 2016) 

(recognizing that even though Tax Court opinions are merely 

persuasive authority, the “Tax Court is informed by 

experience and kept current with tax evolution and needs by 

the volume and variety of its work,” and “uniform 

administration would be promoted by conforming to [its 

decisions] when possible” (alteration in original) (quoting 

Dobson v. Comm’r, 320 U.S. 489, 502 (1943))); Vukasovich, 

Inc. v. Comm’r, 790 F.2d 1409, 1413 (9th Cir. 1986) (“Tax 

distinct “protective petition[s]” when this case was litigated in the Tax 

Court.
62 SEAVIEW TRADING V. CIR

Court decisions should receive deference in the interest of a 

uniform body of national tax law. This is especially so when 

‘it is more important that the applicable rule of law be 

settled than that it be settled right.’” (emphasis added) 

(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 

406 (1932) (Brandeis, J., dissenting))).

Furthermore, “[a]bsent a strong reason to do so, we will 

not create a direct conflict with other circuits.” United States 

v. Cuevas-Lopez, 934 F.3d 1056, 1067 (9th Cir. 2019) 

(internal quotation marks omitted). This rule is even 

stronger in the tax context: “Uniformity among the circuits 

is especially important in tax cases to ensure equal and 

certain administration of the tax system. We would therefore 

hesitate to reject the view of another circuit.” First Charter 

Fin. Corp., 669 F.2d at 1345; see also Ai, 809 F.3d at 507 

(“We have recognized . . . that [u]niformity among Circuits 

is especially important in tax cases to ensure equal and 

certain administration of the tax system. That is particularly 

true where, as here, a circuit split would create two mutually 

exclusive rules . . . leading to uncertainty and obvious forum 

shopping opportunities.” (second alteration in original) 

(internal quotation marks omitted)).

Keeping these principles in mind when examining the 

case law in this area will further demonstrate that, whatever 

the merits of the majority’s novel statutory interpretation in 

this case, its holding cannot stand. For the majority ignores 

or erroneously brushes aside Supreme Court and Tax Court 

precedent. It also needlessly creates a circuit split even 

though the proper method of filing taxes is of nationwide 

concern and self-evidently is a topic on which “it is more 

important that the applicable rule of law be settled than that 

it be settled right.” Vukasovich, 790 F.2d at 1413 (internal 
SEAVIEW TRADING V. CIR 63

quotation marks omitted). These considerations alone are 

enough to render the majority opinion erroneous.

B.

1.

Starting with Supreme Court precedent, we are bound to 

apply the rule that Seaview must show “meticulous 

compliance” with filing requirements to benefit from the 

statute of limitations. Lucas, 281 U.S. at 249; see also 

Comm’r v. Lane-Wells Co., 321 U.S. 219, 223 (1944) 

(“Congress has given discretion to the Commissioner to 

prescribe by regulation forms of returns and has made it the 

duty of the of the taxpayer to comply.”); Bachner v. Comm’r, 

81 F.3d 1274, 1280 (3d Cir. 1996) (“The Supreme Court 

repeatedly has declared that tax returns must comply strictly 

with prescribed requirements in order to trigger applicable 

limitations periods.”).

As already discussed at length, the majority seeks to 

avoid this rule by concluding that the filing of delinquent 

returns is ungoverned by existing law. Even if that were true 

(which it is not), the majority fails to explain how its relaxed 

filing requirements—for taxpayers who pay their taxes 

late—is consistent with the binding rule that a taxpayer must

demonstrate “meticulous compliance” to benefit from the 

statute of limitations. Lucas, 281 U.S. at 249. Rather than 

upholding the need for meticulous compliance, the 

majority’s holding encourages delinquency—i.e., the 

opposite of meticulous compliance—by making it easier for 

delinquent taxpayers to secure the statute of limitations. The 

law does not ordinarily reward delinquency. Even less 

should it do so here, when the Supreme Court has advised us 

that taxpayers must demonstrate meticulous compliance 

with IRS regulations to benefit from the limitations period. 
64 SEAVIEW TRADING V. CIR

Id. Instead of applying that well-established authority, the 

majority invents an anti-meticulous-compliance rule.

We also must apply the Supreme Court’s holding that 

that § 6229’s statute of limitations is to receive “a strict 

construction in favor of the Government.” Badaracco, 

464 U.S. at 391. Here, the majority barely grapples with 

how its interpretation of the Tax Code and IRS regulations 

in this case can possibly be read as a strict construction in 

favor of the government. See Maj. Op. 22 n.6. In fact, the 

majority opinion adopts a loose construction disfavoring the 

government.

2.

A long line of cases from our sister circuits holds that if 

a taxpayer cannot show that he meticulously complied with 

the filing requirements—including, for example, when the 

taxpayer submits his return to the wrong office or 

individual—the statute of limitations does not run and the 

IRS may assess the return at any time. Coffey, 987 F.3d 

at 812–13; Comm’r v. Estate of Sanders, 834 F.3d 1269, 

1274–75 (11th Cir. 2016); Allnutt, 523 F.3d at 411–14; 

O’Bryan Bros. v. Comm’r, 127 F.2d 645, 647 (6th Cir. 

1942); W.H. Hill Co. v. Comm’r, 64 F.2d 506, 507–08 (6th 

Cir. 1933); see also Friedmann, 82 T.C.M. (CCH) 381, 

at *7, aff’d, 80 F. App’x 285 (3d Cir. 2003); Green, 

65 T.C.M. (CCH) 2347, at *7, aff’d, 33 F.3d 1378 (5th Cir. 

1994) (per curiam), cert. denied, 513 U.S. 1059 (1994).

Contrary to our court’s precedent, the majority does not 

“hesitate” to disagree with our sister circuits, but casually 

brushes aside in a single paragraph every one of them to have 

considered the issue before us. See First Charter Fin. Corp., 

669 F.2d at 1345; Maj. Op. 20. As a close look at a sampling 

of these cases will demonstrate, our sister circuits have 
SEAVIEW TRADING V. CIR 65

considered analogous issues, and have reached conclusions 

that stand in stark contrast with the majority’s result.

In Allnutt v. Commissioner, the Fourth Circuit held that 

the taxpayer did not meticulously comply with the filing 

regulations, and the statute of limitations did not begin to 

run, when the taxpayer submitted delinquent tax returns at 

the wrong location. 523 F.3d at 407–10. Allnutt signed his 

tax returns (which were delinquent, covering 1981–1995), 

and hand-delivered them to the Baltimore District Counsel’s 

office on February 21, 1997, intending that such delivery to 

the IRS counsel would constitute the filing of the returns. Id. 

at 408–09. These returns were later marked as received in 

March 1997, but “were never further processed by the IRS.” 

Id. at 409. Also on February 21, 1997, Allnutt attempted to 

hand-deliver photocopied returns to a different person at the 

Baltimore District Director’s office who claimed to have 

authority to take the return. Id. The returns eventually were 

routed to the correct IRS service center and received there in 

May or June 1997. Id. at 409–10. The IRS issued a notice 

of deficiency in March 2000, which would be untimely if 

Allnutt’s returns were filed when he delivered them, in 

February 1997, but timely if the returns were filed when they 

were received at the correct location in May or June 1997. 

Id. at 408, 411.

In Allnutt, the court began its analysis by articulating the 

well-established principles that statutes of limitations are 

construed strictly in favor of the government, and that 

taxpayers must meticulously comply with the relevant 

statutes and regulations to obtain the benefit of the 

limitations period. Id. at 412. The court then explained that 

“for returns to be considered ‘filed’ for purposes of setting 

the period of limitations in motion, the returns must be 

delivered, in the appropriate form, to the specific individual 
66 SEAVIEW TRADING V. CIR

or individuals identified in the Code or Regulations.” Id. at 

413. “Compliance with this requirement is vital so as to 

apprise the proper tax official . . . of the liability of taxpayers 

for the federal income tax imposed upon them.” Id. 

(alteration in original) (internal quotation marks omitted).

The Fourth Circuit then concluded that Allnutt could not 

demonstrate meticulous compliance because he did not 

hand-deliver his returns to the correct individual—which 

would have been either the Baltimore District Director or an 

“administrative supervisor.” Id. In other words, it was not 

enough that Allnutt hand-delivered original returns to the 

IRS Counsel’s office in Baltimore, or that he dropped off 

courtesy copies of the returns with an individual who stated 

he had authority to accept packages on the Baltimore District 

Director’s behalf. See id.

In Coffey v. Commissioner, the Eighth Circuit considered 

whether a married couple had filed their tax return and 

therefore could invoke the three-year statute of limitations. 

See 987 F.3d at 810–11. The Coffeys filed their return with 

U.S. Virgin Islands authorities on the belief that one of the 

Coffeys was a “bona fide” Virgin Islands resident. Id. Bona 

fide Virgin Islands residents are required to file only with the 

Virgin Islands, while any other taxpayer with Virgin Islands 

income must file a return with both the United States and the 

Virgin Islands. Id. at 811. The Coffeys filed their returns 

with the Virgin Islands and not with the IRS, but Virgin 

Islands authorities sent portions of the Coffeys’ returns to the 

IRS, leading to an IRS audit, and eventually to notices of 

deficiency issued more than three years after the IRS 

received the documents. Id. The Coffeys argued the 

assessment was barred by the statute of limitations. Id. The 

Eighth Circuit disagreed, concluding that the statute of 
SEAVIEW TRADING V. CIR 67

limitations never began to run because the Coffeys never 

filed a return. Id. at 811–13.

In Coffey, the court began with the principle that a 

taxpayer must meticulously comply with all filing 

requirements in the Code and IRS regulations and concluded 

that returns “are ‘filed’ if ‘delivered, in the appropriate form, 

to the specified individual or individuals identified in the 

Code or Regulations.’” Id. at 812 (quoting Estate of 

Sanders, 834 F.3d at 1274). The Eighth Circuit clarified that 

“the IRS’s actual knowledge of the income” does not begin 

the limitations period. Id. at 813. Rather, it is only when the 

taxpayer files the return that the period commences, even 

when the IRS receives the relevant information before a 

filing occurs. Id. It did not matter that the IRS received 

copies of the documents themselves: “That the IRS actually 

received the documents, processed and audited them, and 

issued deficiency notices is irrelevant for statute of 

limitations purposes.” Id.

Other circuits have uniformly reached the same 

conclusion as the Fourth Circuit in Allnutt and the Eighth 

Circuit in Coffey. See Estate of Sanders, 834 F.3d at 1274 

(Eleventh Circuit holding that “a return does not trigger the 

running of the statute of limitations unless it is filed in the 

place required by the statute or regulations”); O’Bryan Bros., 

127 F.2d at 647 (Sixth Circuit holding that statute of 

limitations did not run until correct IRS official received the 

return because it was the taxpayer’s duty “to file the return 

with the collector of the district” and “[i]t was not the duty 

of the internal revenue agent in charge to file a return for the 

taxpayer”); W.H. Hill Co., 64 F.2d at 507–08 (Sixth Circuit 

holding that statute of limitations did not run when a return 

was submitted to the Commissioner because the statute 

“required that returns be filed with the collector”); see also 
68 SEAVIEW TRADING V. CIR

Friedmann, 82 T.C.M. (CCH) 381, at *7 (holding that there 

was no filing when the taxpayer “gave photocopies of his 

1989 and 1990 returns to [the IRS’s] revenue agent” because 

“[c]learly, the revenue agent was not the prescribed place for 

filing those returns”), aff’d, 80 F. App’x 285 (3d Cir. 2003); 

Green, 65 T.C.M. (CCH) 2347, at *7 (“[G]iving a delinquent 

return to an IRS agent does not constitute filing.”), aff’d, 

33 F.3d 1378 (5th Cir. 1994) (per curiam), cert. denied, 

513 U.S. 1059 (1994).

The majority does not cite a single case from our sister 

circuits supporting its position. It does, however, attempt to 

distinguish this line of cases. The majority states that none 

of these cases “involve the facts here—when an IRS revenue 

agent authorized to obtain delinquent returns requested and 

received the return from a taxpayer.” Maj. Op. 20. But the 

majority does not explain why, under the Tax Code, 

regulations, case law, other legal authority, or for any other 

reason, it is significant in this context that an IRS revenue 

agent “requested” the return. Maj. Op. 20. Nor does the 

majority explain what is meant by a revenue agent 

“authorized to obtain delinquent returns.” Maj. Op. 20. In 

all the cases from our sister circuits, there is no hint that the 

persons who received the taxpayer’s return were 

unauthorized to obtain them; the question was whether the 

persons who received the returns were empowered to 

process them, i.e., whether the taxpayer submitted the return 

to the right person or the right place. See, e.g., O’Bryan 

Bros., 127 F.2d at 647. Like much of the majority’s opinion, 

the requirement that the person receiving the return be 

authorized to “obtain” it has murky origins. This “obtain” 

requirement is nowhere to be found in the case law or 

(perhaps it goes without saying at this point) the Tax Code 

or IRS regulations. Maj. Op. 10, 15, 20, 21 n.4.
SEAVIEW TRADING V. CIR 69

This approach also directly conflicts with our sister 

circuits, which have emphasized that just because someone

at the IRS gets the return does not mean that the statute of 

limitations begins to run, because to trigger the statute of 

limitations the return must be filed at the correct location or 

with the correct official. See, e.g., O’Bryan Bros., 127 F.2d 

at 647. This is true even when, as here, the IRS relies on the 

materials it receives from the taxpayer to seek adjustments 

or penalties. See Coffey, 987 F.3d at 813.

The majority’s holding also directly conflicts with our 

sister circuits in other ways. Because the majority’s 

conclusion that the Tax Code and regulations do not govern 

delinquent returns is the keystone of its holding, there is a 

direct conflict between the majority’s opinion and Allnutt, in 

which the Fourth Circuit sensibly held that the meticulous 

compliance requirement applied to delinquent returns. 

523 F.3d at 407.

Furthermore, courts have rejected the notion that a 

taxpayer’s good faith belief that he has submitted his return 

to the correct location can excuse meticulous compliance. 

See Estate of Sanders, 834 F.3d at 1275 (holding that “a 

taxpayer’s mere good faith belief” regarding the correctness 

of his filing “is insufficient to cause a return filed with [the 

wrong office] to start the statute of limitations period”); 

Allnutt, 523 F.3d at 414 (opining that although it was “not 

wholly unsympathetic to Allnutt’s plight,” a proper 

application of the meticulous compliance standard required 

finding that the government was not “barred from assessing 

and collecting Allnutt’s considerable tax deficiencies”). 

Thus, even assuming that the revenue agent’s request in this 

case gave rise to Seaview’s good faith belief that it was filing 

its return in fulfilling the request (which the record does not 

actually support), the case law strongly suggests that such a 
70 SEAVIEW TRADING V. CIR

belief would not be a ground to depart from the statute or 

precedent here. As the Eleventh Circuit concluded in Estate 

of Sanders, it would not be appropriate to allow a good-faith 

exception unless Congress created one in the statute. 

834 F.3d at 1276–79.

At a minimum, the majority has not provided a “strong 

reason” to create these direct conflicts with other circuits. 

Cuevas-Lopez, 934 F.3d at 1067; see First Charter Fin. 

Corp., 669 F.2d at 1345.

3.

The Tax Court has also reached the same result each time 

it has been asked to address this issue: When a taxpayer does 

not submit its return to the right official or the right location, 

it has not “filed” the return, unless and until the return 

reaches the correct location and is processed there. See, e.g., 

Smyth, 113 T.C.M. (CCH) 1132, at *3; Friedmann, 

82 T.C.M. (CCH) 381, at *7; Green, 65 T.C.M. (CCH) 2347, 

at *7; Turco v. Comm’r, 74 T.C.M. (CCH) 1437, at *2 

(1997); Metals Refin. Ltd. v. Comm’r, 65 T.C.M. (CCH) 

2171, at *6–7, 10 (1993); Winnett, 96 T.C. at 807–08; 

Espinoza v. Comm’r, 78 T.C. 412, 413, 422 (1982). 

Therefore, I agree with the majority that “several Tax Court 

cases support the IRS’s view in this litigation.” Maj. Op. 20. 

But this synopsis puts it rather mildly. In fact, there are, as 

the Tax Court noted below, “a plethora” of cases supporting 

the conclusion that Seaview did not file its return when it 

sent copies to an IRS agent and IRS counsel. Although the 

Tax Court’s decisions are not binding upon us, the majority’s 

casual treatment of this body of law violates our precedent, 

which requires us to give such decisions respectful 

consideration. Gragg, 831 F.3d at 1192; Vukasovich, 

790 F.2d at 1413. Furthermore, we are not tax experts. It is 
SEAVIEW TRADING V. CIR 71

therefore unwise as well as contrary to law to ignore the Tax 

Court’s precedents.

i.

Specifically, the Tax Court has repeatedly held that the 

meticulous compliance standard applies with full force to 

delinquent returns. Friedmann, 82 T.C.M. (CCH) 381, 

at *2, 6–7 (“[W]e find that there was no filing of the subject 

returns . . . when petitioner gave photocopies of his 

[delinquent] returns to [the IRS’s] revenue agent. Clearly 

the revenue agent was not the prescribed place for filing 

those returns . . . .”); Green, 65 T.C.M. (CCH) 2347, at *7 

(“[G]iving a delinquent return to an IRS agent does not 

constitute filing.”).

The Tax Court has also repeatedly held that submitting a 

return to an IRS agent is not a proper filing and does not 

trigger the limitations period. Friedmann, 82 T.C.M. (CCH) 

381, at *7; Turco, 74 T.C.M. (CCH) 1437, at *2 (holding 

that photocopied returns delivered to IRS agent were not 

filed because they were not “filed in the appropriate office” 

and to conclude otherwise would be “to ignore the . . . place 

of filing requirements”); Green, 65 T.C.M. (CCH) 2347, 

at *7; Metals Refin., 65 T.C.M. (CCH) 2171, at *6–7 

(holding that the delivery of partnership returns to IRS 

agents did not comply with partnership return filing 

requirements); Espinoza, 78 T.C. at 422 (“It was not the 

responsibility of the revenue agent to transmit [the 

taxpayer’s amended] returns for filing . . . .”). Likewise, 
72 SEAVIEW TRADING V. CIR

submitting a return to IRS counsel is not a proper filing. 

Smyth, 113 T.C.M. (CCH) 1132, at *3.

12

Moreover, even if the IRS receives the documents and 

relies upon them to adjust taxes or assess penalties, the Tax 

Court has determined that such reliance does not trigger the 

statute of limitations. Friedmann, 82 T.C.M. (CCH) 381, 

at *6 (holding that the IRS’s notice of deficiency issued 

more than three years after copies sent to IRS agent was 

timely because the returns were never filed); Turco, 

74 T.C.M. (CCH) 1437, at *1–2 (holding photocopies of 

returns were not filed even though the IRS agent “used the 

photocopied returns as the basis for his audit”); Metals 

Refin., 65 T.C.M. (CCH) 2171, at *6–7 (“Even if the IRS 

agents received properly executed returns, delivery to such 

agents does not necessarily constitute proper filing.”).

This result is hardly surprising. To assess a partnership’s 

taxes under § 6229(c)(3), the IRS would presumably have to 

rely on materials conveying information about the 

partnership’s tax liability, such as an unfiled return. See 

26 U.S.C. § 6229(c)(3) (2000). Were the IRS unable to do 

so without converting such a document into a filed return, 

§ 6229(c)(3) would be a dead letter. See Ariz. State Bd. for 

Charter Schs., 464 F.3d at 1007 (observing that in 

interpreting a statute it is for this court to “ascertain—neither 

to add nor subtract, neither to delete nor to distort” the text).

The Tax Court has also repeatedly held that when a 

return is submitted to the wrong location, it is not deemed 

filed for statute of limitations purposes until it is received at 

12 The majority does not reach whether Seaview filed its return when 

it submitted copies of the return to IRS counsel in 2007. Maj. Op. 21

n.5.
SEAVIEW TRADING V. CIR 73

the location “designated to receive such return.” Winnett, 

96 T.C. at 808; see also Dingman v. Comm’r, 101 T.C.M. 

(CCH) 1562, at *12–13 (2011) (holding that a delinquent 

return submitted to the wrong location was filed when “an 

IRS office with authority to receive and process the contents 

of the package” received the package, as evidenced by the 

date that the checks submitted with the returns were 

processed). Therefore, even overlooking that Seaview never 

filed its return to the right place, the return was also never 

“filed” because—as the parties do not dispute—Seaview 

cannot show that its return ever reached the Ogden service 

center, the correct location for receipt and processing of its 

return.

ii.

After disregarding this entire body of law, the majority 

focuses on the lone Tax Court opinion that it concludes 

supports its reading of the Tax Code and regulations, 

Dingman v. Commissioner, 101 T.C.M. (CCH) 1562. Maj. 

Op. 20. But a closer read of Dingman shows that the 

majority’s reliance on this case is misplaced.

In Dingman, the taxpayer did not timely file his 1996–

2000 federal income tax returns and became the subject of 

an IRS criminal investigation. Id. at *1. At some point 

during Dingman’s cooperation with the investigation, his 

counsel delivered a package containing the delinquent 

returns—and checks to pay the outstanding tax liability—to 

the IRS investigators. Id. The first of Dingman’s payments 

was posted on February 19, 2003, indicating that the IRS had 

received and processed his returns by that date at the latest. 

Id. at *1–4, 6. More than three years later, on February 28, 

2006, the IRS sought to assess additional taxes. Id. at *2, 6. 

The question was whether this assessment was untimely. Id. 

at *5.
74 SEAVIEW TRADING V. CIR

The government argued, in line with the authorities 

outlined above, that Dingman’s 2003 submission was not a 

filing for statute of limitations purposes because the returns 

were delivered to the wrong IRS representative. Id. at *7. 

But an unusual administrative development derailed this 

argument. Id. at *7–8.

In 2003, the IRS had recently restructured itself such that 

earlier regulations about the correct filing location had been 

“rendered obsolete,” but, “in 2003 regulations under section 

6091 continued to refer to officials whose positions had been 

eliminated and to offices that had been eliminated as a result 

of the reorganization, leaving taxpayers with little or no 

effective regulatory guidance.” Id. at *8. The IRS sought to 

rectify this situation by issuing a notice in early 2003 

providing instructions on correct filing locations under the 

new regime, but this document did not become effective 

until April 7, 2003—after Dingman had delivered his 

delinquent returns, and checks for the tax liability, to 

investigators. Id. at *8–9. The IRS did not update the 

regulations to reflect the reorganization until September 

2004. Id. at *8. Consequently, there was an unusual lack of 

guidance for taxpayers filing in the period that Dingman 

submitted his returns. Id. at *9.

In this vacuum, the Tax Court found it significant that 

the record showed that Dingman delivered a package of tax 

returns no later than February 19, 2003 (the date the first of 

Dingman’s payments was processed), and that this package 

was received, by that date, at “an IRS office that had the 

authority to process its contents.” Id. The government 

argued that this did not matter because the IRS investigators 

were not the proper recipients of the returns, and therefore 

Dingman “failed to meticulously comply with the filing 

requirements.” Id. at *10.
SEAVIEW TRADING V. CIR 75

The Tax Court distinguished the authorities tending to 

support the government’s position by noting, among other 

things, that (1) Dingman’s filing did not contradict specific, 

applicable IRS statutes or regulations (because of the lack of 

applicable regulations in early 2003); (2) none of the cases 

on which the government relied “involved an attempt by the 

taxpayer to file executed original returns with payments”; 

and (3) “none of the cases involved evidence that the 

payments made with the returns were actually processed by 

the IRS and credited to the taxpayer’s account.” Id. at *11. 

Further, the court explained that, in light of the uncertain 

regulatory environment in early 2003, the government’s 

argument that IRS investigators lacked authority to accept 

returns was unavailing because the government failed to 

prove that investigators lacked such authority at that time. 

Id.

Finally, the Tax Court reasoned that, even if the taxpayer 

submits a return to someone who is not authorized to accept 

it for filing, if the return is then forwarded to the correct IRS 

office, the limitations period commences from the time the 

designated office actually receives it. Id. at *12 (first citing 

Winnett, 96 T.C. at 808; then Allnutt v. Comm’r, 84 T.C.M. 

(CCH) 669 (2002)). The record demonstrated that the IRS 

received the returns for processing by no later than February 

19, 2003—rendering the IRS’s later assessment untimely. 

Id. at *12–13.

Dingman, properly applied to the facts here, does not 

support the majority’s result. First, there are crucial factual 

differences between Dingman and this case. The first and 

most blatant is that in Dingman there were no applicable 

regulations informing the taxpayer where to file his returns. 

See id. at *8; Michael Saltzman & Leslie Book, IRS Practice 

and Procedure ¶¶ 5.02[2] & n.44, 5.03[1][b] & n.130 (Feb. 
76 SEAVIEW TRADING V. CIR

2022) (noting that that the Tax Court concluded the returns 

were filed “because the relevant Treasury Regulations had 

not been revised to replace obsolete offices in the Service”). 

Although the Tax Court in Dingman recognized the 

“meticulous compliance” standard, see 101 T.C.M. (CCH) 

1562, at *7, there were no regulations with which to 

meticulously comply. Here, the majority agrees that 

Seaview was subject to § 6230(i) and § 1.6031(a)-1(e). Maj. 

Op. 13. This distinction alone is enough to render the 

reasoning of Dingman inapplicable.

The second crucial distinction is that Dingman submitted 

checks along with the five delinquent returns and, by 

February 19, 2003, the IRS had actually received and 

processed those checks, which demonstrated that by that 

date at the latest someone with authority to process the 

returns had received them. Id. at *12–13. Neither Seaview 

nor the majority point to any date at which it can be shown 

that the Ogden service center, or some other IRS office with 

requisite authority, received and processed Seaview’s return.

This fact, in turn, played a pivotal role in the Tax Court’s 

holding in Dingman, which was that the returns were filed 

no later than February 19, 2003, when the IRS deposited the 

money from Dingman’s checks, not that the filing occurred 

on the date the returns were delivered to the IRS 

investigator—sometime between late 2002 and midFebruary 2003. See id. at *1, 12–13. Thus, consistent with 

established Tax Court precedent, the court did not conclude 

that the filing occurred when the delinquent returns were 

delivered to the someone at the IRS, but rather when the 

returns were received at the correct location and processed. 

Id. at *12–13 (citing Winnett, 96 T.C. at 808).

Given these important considerations, it is absurd for the 

majority to state that the facts of Dingman “closely mirror 
SEAVIEW TRADING V. CIR 77

this case.” Maj. Op. 21. And this is without even addressing 

other relevant distinctions, including that in Dingman the 

taxpayer’s counsel hand-delivered the returns to IRS 

investigators in the context of a criminal investigation. Id. 

at *1. See Hertsel Shadian, 14A Mertens Law of Federal 

Income Taxation § 55:8 n.3 (Feb. 2022) (“Dingman is 

applicable only to hand-delivery of returns arising under the 

facts present in that case, i.e., the taxpayer clearly intended 

that the returns submitted to the [IRS investigator] be 

delinquent returns with payments, and the Service processed 

them as such and assessed the taxpayer’s payments.”).

Finally, Dingman is decidedly an outlier. See Shadian, 

supra, at § 55:8 n.3; Saltzman & Book, supra at ¶ 5.03[1][b] 

n.130. Even if we could somehow twist the facts of this case 

to fit the unusual circumstances present in Dingman, such a 

project would be dubious in light of the overwhelming 

Supreme Court, Tax Court, and out-of-circuit authority 

pointing in the other direction.

IV.

For all these reasons, the majority opinion should not be 

the holding of this court. The majority misconstrues the 

statutes and regulations, improperly fashions its own 

delinquent-return filing regime, is wrongly predicated on 

nonbinding internal IRS guidance, incorrectly applies a form 

of implicit equitable estoppel, misreads the record, and—

contrary to basic rules of our jurisprudence—disregards 

Supreme Court, out-of-circuit, and Tax Court authority.

Rather than following this dubious approach, I would 

adhere to “the theory of justice that requires a judge to follow 
78 SEAVIEW TRADING V. CIR

the law as it is.” Smyth, 113 T.C.M. (CCH) 1132, at *4. I 

respectfully dissent.13

13 Because Seaview’s failure to file its 2001 return is dispositive of 

the issues on this appeal, I do not reach the majority’s conclusions about 

whether the copies Seaview shared in 2005 and 2007 are “returns.” Maj. 

Op. 22–25.