Stephen W. Williams - Page 13

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          III. Addition to Tax                                                        
               Respondent determined that petitioner is liable for an                 
          addition to tax pursuant to section 6651(a)(1).  Section                    
          6651(a)(1) imposes an addition to tax for failure to file a                 
          return on the date prescribed (determined with regard to any                
          extension of time for filing), unless the taxpayer can establish            
          that such failure is due to reasonable cause and not due to                 
          willful neglect.  The taxpayer has the burden of proving the                
          addition is improper.  See Rule 142(a); United States v. Boyle,             
          469 U.S. 241, 245 (1985).  The amount added to the tax under this           
          section is 5 percent for each month or faction thereof during               
          which the return is late, up to a maximum of 25 percent.  See               
          sec. 6651(a)(1).                                                            
               The due date for petitioner’s 1991 return, as extended, was            
          October 15, 1992.  Petitioner stipulated that the altered 1040              
          was mailed on October 1, 1994, almost 2 years late.  Petitioner             
          mailed the disclaimer 1040 on November 21, 1996.  Regardless of             
          whether either of these forms was a valid return, neither was               
          filed within 5 months of the extended due date.  Petitioner                 
          offered no evidence showing that his failure to file timely was             
          due to reasonable cause and not due to willful neglect.                     
          Accordingly, we hold petitioner is liable for the maximum                   
          addition to tax under section 6651(a)(1).                                   








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