Gaylon L. Harrell - Page 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              
                         (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,                                         
                           *    *    *    *    *    *    *                            

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