-10-
We agree with respondent.
When determining whether a failure to file is fraudulent
under section 6651(f), we must consider essentially the same
elements as are considered in imposing the addition to tax for
fraud under former section 6653(b)(1) and the present section
6663. Clayton v. Commissioner, 102 T.C. 632, 653 (1994).
When respondent seeks to impose the addition to tax under
section 6651(f),4 respondent has the burden of proof. To carry
4 Sec. 6651 provides, in pertinent part, as follows:
SEC. 6651. FAILURE TO FILE TAX RETURN OR TO PAY TAX.
(a) Addition to the Tax.--In case of failure--
(1) to file any return required under authority of
subchapter A of chapter 61 * * * on the date prescribed
therefor (determined with regard to any extension of
time for filing), unless it is shown that such failure
is due to reasonable cause and not due to willful
neglect, there shall be added to the amount required to
be shown as tax on such return 5 percent of the amount
of such tax if the failure is for not more than 1
month, with an additional 5 percent for each additional
month or fraction thereof during which such failure
continues, not exceeding 25 percent in the aggregate;
* * * * * * *
(b) Penalty Imposed on Net Amount Due.--For purposes
of--
(1) subsection (a)(1), the amount of tax required
to be shown on the return shall be reduced by the
amount of any part of the tax which is paid on or
before the date prescribed for payment of the tax and
by the amount of any credit against the tax which may
be claimed on the return,
* * * * * * *
(continued...)
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011