Anthony P. Hart - Page 10




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          4.   Addition for Failure To Timely File Return                             
               Section 6651(a)(1) provides that a taxpayer who fails to               
          timely file a return “shall” pay an addition to tax of 5 percent            
          per month of the amount required to be shown on the return, not             
          to exceed 25 percent.  The provision is mandatory, “unless it is            
          shown that such failure is due to reasonable cause and not due to           
          willful neglect.”  Id.  Respondent did not include a failure to             
          file addition under section 6651(a)(1) in the notice of                     
          deficiency, presumably because respondent’s personnel at the                
          Internal Revenue Service Center were confused by the unsigned               
          Form 1040 filed by petitioner showing no tax due.  Had respondent           
          included the section 6651(a)(1) addition in the notice of                   
          deficiency, petitioner would have been liable for an addition of            
          25 percent of the amount that should have been shown on the                 
          return.                                                                     
               Section 6214(a) gives us jurisdiction to redetermine the               
          correct amount of the deficiency even if the amount so                      
          redetermined is greater than the amount set forth in the notice             
          of deficiency “if claim therefor is asserted by the Secretary at            
          or before the hearing or a rehearing.”  Even after realizing that           
          petitioner had failed to file a valid income tax return,                    
          respondent inexplicably did not assert a claim for the section              
          6651(a)(1) addition.  Because respondent asserted no claim for              
          the section 6651(a)(1) addition at or before the hearing, we                






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Last modified: May 25, 2011