Tony Malfatti - Page 6

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               Petitioner was not credible.  His testimony was questionable           
          in certain material respects, and under the circumstances                   
          presented here, we are not required to, and generally do not,               
          rely on petitioner’s testimony to sustain his burden of                     
          establishing error in respondent’s determinations.  See Lerch v.            
          Commissioner, 877 F.2d 624, 631-632 (7th Cir. 1989), affg. T.C.             
          Memo. 1987-295; Geiger v. Commissioner, 440 F.2d 688, 689-690               
          (9th Cir. 1971), affg. per curiam T.C. Memo. 1969-159; Tokarski             
          v. Commissioner, supra at 77.  Accordingly, we sustain                      
          respondent’s determination regarding the unreported income for              
          all the years.                                                              
          C.   Additions to Tax                                                       
               Section 7491(c) requires that respondent bear the burden of            
          production regarding additions to tax.  To meet this burden,                
          respondent must present evidence indicating that it is                      
          appropriate to impose the addition to tax.  See Higbee v.                   
          Commissioner, 116 T.C. 438, 446 (2001).                                     
               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.  Petitioner admitted he did not file tax            
          returns for 1998, 1999, 2000, and 2001.  Thus, respondent                   
          satisfied his burden of production.                                         






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