The Function of Forms in the Substitute-For-Return Process

Abstract

A “return” is not simply a form but is a form which serves a function. One should not ignore either form or function, but there is sometimes a tension between them.

This paper looks at how that balance between form and function should apply to taxpayers who participate in the substitute-for-return process under section 6020. The IRS has recently changed its mind on the proper balance. It used to agree that a signed Form 870 should be treated “as the return of the taxpayer” within the meaning of section 6020(a) when presented to taxpayers by the IRS during the substitute-for-return process. The IRS reached this result even though the Form 870 was not one of the “prescribed return forms.” The gist of Rev. Rul. 74-203, followed by over 30 year’s worth of other IRS guidance and court opinions on the same issue, was that a signed Form 870 sufficiently fulfilled the function of a return to be treated as the return of the taxpayer. In the section 6020 context, where it was the IRS preparing the “return,” the taxpayer should not be held accountable for the IRS’s choice of what form to use. In short, form followed function.

The IRS changed its mind in Rev. Rul. 2005-59. There, it decided that because the Form 870 lacked a formality, it could not serve as the taxpayer's return in the section 6020 context.

This paper explains why the current IRS position is out of balance.

Keywords: returns, form, function, substitute for returns, SFR, 6020, Form 870, Form 4549

JEL Classification: K10, K30, K34, K40, K41