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that Congress intended to create a case-by-case reasonableness
determination of whether a contribution could be deemed timely.
We sustain respondent’s determination of the excise tax.2
B. Failure To File Penalty
Section 6011(a) provides that, when required by regulations,
any person liable for a tax shall make a return. Section
54.6011-1(a), Pension Excise Regs., requires any employer who is
liable for the tax under section 4971(a) to file an annual return
on Form 5330. Petitioner did not file such a return.
Section 6651(a)(1) imposes a minimum addition to tax for
failure to timely file a return in the amount of $100 or 5
percent of the amount of tax due per month for each month that a
return is not timely filed, not to exceed 25 percent “unless it
is shown that such failure is due to reasonable cause and not due
to willful neglect”. United States v. Boyle, 469 U.S. 241, 246
(1985). Petitioner has not addressed this issue, and, we assume
that, if she is liable for the excise tax, she concedes the
addition to tax under section 6651(a)(1).
Decision will be entered
for respondent.
2 Petitioner contends that under IRS Publication 560,
Retirement Plans for the Self-Employed, contributions can be
retroactively applied to the previous year if the contributions
are made by the due date of the employer’s return. We have
recently considered and rejected this argument. See Wenger v.
Commissioner, T.C. Memo. 2000-156. We see no reason to restate
our reasoning here.
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