- 5 -
income tax returns, utilizing the services of a responsible
certified public accountant. It appears that, for 1 or more
years prior to the year at issue, petitioner had to file returns
or amended returns to correctly report his income for those
years. Petitioner contends that, for these prior years, he was
not required by the IRS to pay any penalties. At trial, counsel
for respondent agreed that, for these prior years, additions to
tax against petitioner were abated. On this history, petitioner
contends he should not be held liable for the sections 6651(a)(1)
and 6654(a) additions to tax that are before the Court for the
2002 tax year.3
Section 7491(c) imposes upon the Commissioner the “burden of
production” with respect to the liability of any person “for any
penalty, addition to tax, or additional amount imposed by this
title”. In Higbee v. Commissioner, 116 T.C. 438, 446 (2001),
this Court held that the phrase “burden of production” does not
mean that the burden of proof is on the Commissioner with respect
to penalties and additions to tax. The burden of production
under Higbee is satisfied where respondent shows, in the case of
the section 6651(a)(1) addition to tax, that no income tax return
has been filed or, if filed, was not filed timely and, with
respect to section 6654, that estimated taxes have not been paid.
3For the year at issue, 2002, the income tax return was
filed in August 2004 and was accepted and processed by the IRS.
A copy of that return was not offered into evidence at trial.
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011