John J. Burke and Vivian Burke - Page 25

            Balsamo in the summer of 1993.  Prior to this time, Mrs. Burke was unaware                  
            that purported joint Federal income tax returns had been filed.                             
                  We conclude that Mrs. Burke did not tacitly consent to the filing of                  
            joint Federal income tax returns for the years in issue, and, therefore, she                
            is not jointly and severally liable for the tax16 in issue.  It follows that                
            Mr. Burke's Federal income tax liability for 1985, 1986, and 1987 must now be               
            computed under the filing status of "married filing separate".                              

            Addition to Tax for Failure to File a Timely Return                                         

                  Mr. Burke filed a delinquent return for the taxable year 1986, and                    
            respondent determined that he is liable under section 6651(a)(1) for an                     
            addition to tax on the portion of the underpayment that is not due to fraud.                
            See sec. 6653(d).                                                                           
                  Mr. Burke bears the burden of proof on this issue; however, he did not                
            address this issue on brief, and there is no evidence that would lead us to                 
            conclude that he had a reasonable excuse for not filing his 1986 return until               
            March 29, 1991.  We sustain respondent's determination.                                     

            Additions to Tax for Substantial Understatement of Income Tax                               

                  Respondent determined that Mr. Burke is liable for additions to tax for               
            1985, 1986, and 1987 under section 6661.  Respondent also alleged in her                    
            answer that this addition to tax applies to the understatement of tax                       
            attributable to the additional income of $22,448 that we have found that Mr.                
            Burke received in 1986.  Section 6661(a) provides for an addition to tax equal              
            to 25 percent of the amount of any underpayment attributable to a substantial               
            understatement of income tax.  Pallottini v. Commissioner, 90 T.C. 498, 503                 
            (1988).  An understatement is substantial if it exceeds the greater of $5,000               



            16Since we have determined that Mrs. Burke did not tacitly consent to the                   
            filing of joint Federal income tax returns, we need not consider whether she                
            satisfies the requirements for protection under the innocent spouse provision               
            in sec. 6013(e).                                                                            




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