Rose v. Commissioner, 24 T.C. at 760, 766-770. We analyzed the situation as follows (id. at 768-769):

The Ventura store was not operated by a partnership. It was community property of the petitioners and the income therefrom was community income. Each of the petitioners, therefore, should have reported one-half of the gross income from the business. Leslie A. Sutor, 17 T.C. 64, 67. The respondent urges that they did not do so in their individual returns, and that their failure to do so is an omission from gross income by each of them. But we think it is unrealistic to say that the petitioners did not report the gross income of the Ventura store (with the exception of the $17,946.97 which each of them omitted). They did so on Form 1065, a "partnership return." Although there was no partnership between them in the business of this store, Form 1065 returns were filed for the years 1938 to 1948, inclusive, at the suggestion of a revenue agent to facilitate the reporting of the community income of the store. The so-called partnership return filed for 1943 reported the gross income of the Ventura store in which petitioners each had an equal interest. It was not the return of another taxable entity. Cf. Corrigan v. Commissioner, 155 F.2d 164, 166 (C.A. 6); Elvina Ratto, 20 T.C. 785, 789. It showed income of the community, a nontaxable entity. In the circumstances we think that the so-called partnership return filed for the Ventura store was merely an adjunct to the individual returns of Jack and Mae Rose and must be considered together with such individual returns and treated as part of them. This case is thus distinguished from the Switzer case where the return in question was a proper partnership return, whereas here it was nothing unless it was an adjunct to the individual returns. But if the Commissioner is now and henceforth to concede, contrary to our decision in the Switzer case, that a valid partnership return may be read with the return of an individual partner to arrive at the total gross income stated in the partner's return, then, a fortiori, the Form 1065 return in this case which was filed merely to facilitate the reporting of community income of the petitioners, similar returns having been accepted for a number of years for that purpose by the Commissioner, would have to be read together with the individual returns of the partners to ascertain how much gross income was reported by each of them. Cf. Germantown Trust Co. v. Commissioner, 309 U.S. 304; Atlas Oil & Refining Corporation, 22 T.C. 552, 557. We hold, therefore, that one-half of the gross income appearing on the Ventura store "partnership" return must be imputed to the individual return filed by each petitioner in determining the total gross income stated therein for the purposes of section 275(c). [Emphasis added.]

In Roschuni v. Commissioner, 44 T.C. 80 (1965), the taxpayer-wife owned an S corporation, which filed an information return for 1958, a year for which the Commissioner determined a deficiency against the taxpayers. The notice of deficiency was issued more than 3 years, but less than 6 years, after the taxpayers filed their 1958 tax return. We

quoted extensively from our opinion in Rose v. Commissioner, supra, concluded that the S corporation was not a taxable entity, and stated that the principle of Rose v. Commissioner, supra, applied. See Roschuni v. Commissioner, 44 T.C. at 8586. We described this principle as requiring the information return of the nontaxable entity to be treated as an adjunct of the taxpayers' tax return. See id. at 85-86. We also held that the taxpayers' reference, in their 1958 tax return, to the S corporation's 1958 information return and the disputed transaction, was sufficient to satisfy the requirements of section 6501(e)(1)(A)(ii), and so any omitted gross income from that transaction was not to be taken into account. See id. at 85-86.

In Davenport v. Commissioner, 48 T.C. 921 (1967), the taxpayers' 1958, 1959, and 1960 tax returns reported losses from a specified partnership. See id. at 924–925. The taxpayer-wife contended that assessment of any deficiencies for these 3 years was barred by the statute of limitations; the Commissioner contended that the 6-year limitations period applied. See id. at 927-928. We held that the Commissioner failed to carry the burden of proving an omission of more than 25 percent of the gross incomes stated in the taxpayers' tax returns, as follows (id. at 928, 929):

To satisfy his burden in proving the omission, respondent must show the amount of gross income stated in the return and the amount of income properly includable therein which has been omitted. Elizabeth Bardwell, 38 T.C. 84 (1962), affd. 318 F. 2d 786 (C.A. 10, 1963), and Lois Seltzer, 21 T.C. 398 (1953). In the instant case respondent has not shown the amount of gross income stated in the return. On each of the returns for the years 1958 through 1960 there is reported on Schedule H a net loss figure for certain partnership income. Respondent has not shown whether a partnership return was filed for those years and if so the gross income reported thereon. Under section 6501(e)(1)(A) the term "gross income from a trade or business" means the amount received or accrued from the sales of goods or services undiminished by the cost of such goods or services. Since there is no evidence indicating the manner in which petitioner arrived at the loss figure for income from the partnership, there is nothing in the record to show petitioner's gross income from the partnership. Respondent's Rev. Rul. 55-415, 1955-1 C.B. 412, following his ruling in I.T. 3981, 1949-2 C.B. 78, as to a partner's gross income for the purpose of section 251 of the Internal Revenue Code of 1939, provides, and this Court has recognized, that a partnership return is to be considered together with an individual return in determining the total gross income stated in the individual return for the purpose of determining whether the

6-year statute of limitations is applicable. Jack Rose, 24 T.C. 755, 768-769 (1955). See also Elliott J. Roschuni, 44 T.C. 80 (1965), and Genevieve B. Walker, 46 T.C 630, 637-738 (1966). [Emphasis added.]

We therefore conclude that respondent has failed to establish that petitioner and Richard omitted from any one of their joint Federal income tax returns for the years 1958, 1959, and 1960 an amount of gross income properly includable therein in excess of 25 percent of the amount of gross income stated in such return and therefore respondent has failed to show that the 6-year statute is applicable.

* * * * * * *

We, therefore, sustain respondent's determination as modified by the stipulation of the parties filed in this case for the years 1961, 1962, and 1963 but hold that the assessment or collection of any deficiency against petitioner is barred by the statute of limitations for the years 1958, 1959, and 1960.

In Estate of Klein v. Commissioner, 63 T.C. 585 (1975), affd. 537 F.2d 701 (2d Cir. 1976), we were called upon to determine the meaning of "the amount of gross income stated in the return", within the meaning of section 6013(e)(1)(A), relating to relief from joint liability, as that provision applied to 1955. See id. at 589. Relying in part on section 6013(e)(2)(B), we held that the quoted phrase in section 6013(e)(1)(A) must be given the same meaning that it has in section 6501(e)(1)(A), and that under the latter provision

the only way "the amount of gross income stated in the return" can be determined, where a partner of a partnership which has filed a return is concerned, is to consider the partnership return together with the individual return in determining "the total gross income stated in the return" of the individual partner. Genevieve B. Walker, 46 T.C. 630 (1966). See Nadine I. Davenport, 48 T.C. 921, 928 (1967); accord, Elliott J. Roschuni, 44 T.C. 80 (1965), and Jack Rose, 24 T.C. 755 (1955). Cf. sec. 702(c); sec. 1.702-1(c)(2), Income Tax Regs. [Estate of Klein v. Commissioner, 63 T.C. at 590-591.]

As a result, we held, for the Commissioner, that—

the partnership return, must be read as an adjunct with the individual partner's return in determining the total gross income stated in the individual's return. Indeed, that determination with respect to partnerships arose from the gloss upon the section by the decided cases, compare L. Glenn Switzer, 20 T.C. 759 (1953), with Genevieve B. Walker, supra, and

Nadine I. Davenport, supra; cf. Elliott J. Roschuni, supra; Jack Rose, supra.9 [Emphasis added.]

9 See also Harry Landau, 21 T.C. 414 (1953); Norman Rodman, T.C. Memo. 1973-277; and Vernie S. Belcher, T.C. Memo. 1958-180, where it is pointed out that a "partner's share of the gross income on the partnership returns must be imputed to the individual return." And that if the partnership return is not in evidence it is impossible to know the "gross income stated in the return." The 6-year limitation does not apply if disclosure "is made on or with the tax return." (Emphasis supplied.) H. Rept. No. 1337, 83d Cong., 2d Sess., p. 107 (1954); S. Rept. No. 1622, 83d Cong., 2d Sess., pp. 143-144 (1954).

[Id. at 592.]

Taking into account the taxpayers' share of the gross income shown on their partnership's information return as having been shown on the taxpayers' tax return, we held that the gross income omitted from the taxpayers' tax return was less than 25 percent of the gross income stated on the taxpayers' tax return. See Estate of Klein v. Commissioner, 63 T.C. at 588. We concluded from this that the taxpayer-wife failed to qualify for relief from joint liability under the law then in effect. See id. at 589. Although we ruled for the Commissioner based on the language of sections 6013 and 6501, we commented as follows on the Commissioner's argument under section 702(c) (Estate of Klein v. Commissioner, 63 T.C. at 591 & n.6):

As we read the first sentence [of the Finance Committee report on the 1970 enactment of sec. 6013(e)] we think "the income reported" by a partner includes his share of the gross income, as defined in section 6501(e)(1)(A)(i), of the partnership. Rev. Rul. 55-415, 1955-1 C.B. 412; I.T. 3981, 1949-2 C.B. 78.6

6 Respondent cites sec. 702(c) and sec. 1.702-1(c)(2), Income Tax Regs., in support of this position. We note in passing our belief that the example given in sec. 1.702(c)(2), Income Tax Regs., conflicts with sec. 6501(e)(1)(A)(i) and (ii) because under the latter section "gross income" is specially defined and if a partnership return is filed the entire amount of such "gross income" allocable to a partner is deemed reported on the return. We do not think the gross income referred to in sec. 702(c) is the equivalent of the "gross income" defined under sec. 6501(e)(1)(A).

In affirming our determination and agreeing with our analysis, the Court of Appeals took the occasion to state agreement with our comment on section 702(c), as follows (537 F.2d at 705 n.9):

We further note that we share the tax court's opinion that the example in Treas. Reg. § 1.702-1(c) appears to conflict with § 6501(e)(1)(A)(ii)'s method for determining the amount "omitted" from gross income when a partnership return has been filed.

We conclude that one pattern that emerges from our prior opinions dealing with the denominator in the 25-percent calculation is relevant to the limited matter now before us. In dealing with documents that were not physically attached to the taxpayer's tax return, we have consistently12 drawn a line between (1) documents that have been filed as tax returns of other taxpayers, and (2) documents that, even if filed as tax returns, were not tax returns of other taxpayers. Documents in the former category have not been taken into account in determining the amount of gross income "stated in the return". See, e.g., Masterson v. Commissioner, supra; Ratto v. Commissioner, supra.

On the other hand, the second category-documents that were not filed as tax returns of other taxpayers-have been treated as adjuncts to and part of the taxpayers' tax returns for purposes of determining "the amount of gross income stated in the return". This approach has been applied to partnership tax returns (see, e.g., Davenport v. Commissioner, supra), S corporation tax returns (see, e.g., Roschuni v. Commissioner, supra), and other documents which are not tax returns of taxpayers, see, e.g., Rose v. Commissioner, supra.

V. Analysis

Section 6501(e) and its predecessors require omitted gross income to be compared to gross income stated in the return. In Green v. Commissioner, 7 T.C. 263, 277 (1946), affd. 168 F.2d 994 (6th Cir. 1948), we concluded that "Gross income' has a well-established meaning in the revenue laws, denoting statutory gross income as defined by section 22 [of the Reve

12 In Switzer v. Commissioner, 20 T.C. 759, 767-768 (1953), we pointed to computational anomalies that might result from applying this approach to partnerships, and there declined to so apply this approach. However, on appeal the Commissioner joined the taxpayers to persuade the Court of Appeals to order us to vacate our decisions and enter decisions for the taxpayers. After we complied with the Court of Appeals' order in the Switzer dockets, we recognized that the Commissioner had, in effect, conceded error in Switzer's statute of limitations rulings and meant to apply that concession generally. See Rose v. Commissioner, 24 T.C. 755, 768-769 (1955). In Rose, we merely distinguished Switzer but did not formally overrule it. See 24 T.C. at 769. However, since that time, we have not followed Switzer on this point. In the instant cases, neither side cites Switzer. Clearly, Switzer has been sapped of its vitality.