William N. Kellahan, Jr. and Alice H. Kellahan - Page 23




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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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