Kevin H. Motley - Page 6




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          individual for additions to tax.  To meet his burden of                     
          production, the Commissioner must come forward with sufficient              
          evidence indicating that it is appropriate to impose this                   
          addition to tax.2  See Higbee v. Commissioner, 116 T.C. 438, 446            
          (2001).                                                                     
               In addition to filing the answer, respondent submitted, and            
          the Court received as evidence, petitioner’s transcripts of                 
          account for 1994, 1995, and 1996.  Respondent also called Appeals           
          Officer Steve Henstridge to testify about the additions to tax              
          determined by respondent.                                                   
               1.   Section 6651(a)(1).  Failure To File                              
               Section 6651(a)(1) imposes an addition to tax for failure to           
          file a return on the date prescribed (determined with regard to             
          any extension of time for filing), unless the taxpayer can                  
          establish that such failure is due to reasonable cause and not              
          due to willful neglect.  The transcripts of account indicate that           
          the Internal Revenue Service (IRS) did not receive returns from             
          petitioner for 1994, 1995, and 1996.  Additionally, Appeals                 
          Officer Henstridge testified that he reviewed petitioner’s                  

               2  We do not decide herein whether the Commissioner could              
          meet the burden of production if he did not produce any evidence            
          when the taxpayer failed to appear for trial.  For example, it              
          might be possible for the Commissioner to satisfy the burden of             
          production under sec. 7491(c) without presenting any evidence if            
          the answer contained “well-pleaded facts”.  Smith v.                        
          Commissioner, 91 T.C. 1049, 1056-1057, 1058-1059 (1988), affd.              
          926 F.2d 1470 (6th Cir. 1991).  We, however, leave that decision            
          for another day.                                                            





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