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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