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II. Addition to Tax
In the notice of deficiency, respondent determined that
petitioners were liable for additions to tax under section
6651(a) for failure to file tax returns for both 1990 and 1992.
Respondent now concedes that petitioners are not liable for the
addition to tax for 1992. Respondent agrees that the requests
for extension for filing the 1990 return were timely filed and
that petitioners’ 1990 return was filed within the time as
provided in the requests for extension. However, respondent
argues that the Form 4868, requesting an automatic extension of
time to file, was invalid. We disagree.
In order for a Form 4868 to be valid, the taxpayer must use
available evidence of tax liability, and must attempt to locate
evidence, to make a proper estimate.14 See Crocker v.
Commissioner, 92 T.C. 899 (1989). The mere fact that the
estimate is incorrect does not make the Form 4868 invalid. See
id. at 906-907. However, “if a taxpayer, in his Form 4868
request for automatic extension, estimated his tax liability to
be zero, even though he had, at the time he submitted the
request, ample evidence discrediting the estimate, the Form 4868
would be invalid.” Id. at 908.
14 The Form 4868 itself warns of this limitation. It
states: “If we later find that your estimate was not reasonable,
the extension will be null and void.”
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