Doyce D. Gentry - Page 5




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          an addition to tax of 5 percent of the tax due for each month or            
          partial month of the delinquency, not to exceed 25 percent,                 
          “unless it is shown that such failure is due to reasonable cause            
          and not due to willful neglect”.  Since both returns were filed             
          more than 5 months after the due date, the maximum penalty of 25            
          percent would apply, unless the delay was the result of                     
          “reasonable cause” and not “willful neglect”.                               
               Petitioner bears the burden of proving that the delay                  
          resulted from “reasonable cause” and not “willful neglect” where            
          the addition to tax was determined in the notice of deficiency,             
          as it was here.3  Rule 142(a); Bebb v. Commissioner, 36 T.C. 170,           
          173 (1961); Comey v. Commissioner, T.C. Memo. 2001-275; Smith v.            
          Commissioner, T.C. Memo. 1984-114; Dritz v. Commissioner, T.C.              
          Memo. 1969-175, affd. 427 F.2d 1176 (5th Cir. 1970); see also               
          Welch v. Helvering, 290 U.S. 111 (1933) (presumption of                     
          correctness given to Commissioner’s determinations in notice of             
          deficiency).                                                                
               Petitioner offered no evidence to meet his burden of proof.            
          Indeed, the only relevant testimony concerning this issue was               


               3In 1998, Congress enacted sec. 7491(c), which places the              
          burden of production on the Secretary in connection with any                
          determination of penalties or additions to tax.  Sec. 7491(c)               
          applies only to court proceedings arising in connection with                
          examinations commenced after July 22, 1998.  Internal Revenue               
          Service Restructuring and Reform Act of 1998, Pub. L. 105-206,              
          sec. 3001, 112 Stat. 726.  The notice of deficiency in this case            
          was issued on Feb. 26, 1997, which conclusively establishes that            
          the examination was commenced before July 22, 1998.                         





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