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Petitioner, however, is not liable for the addition to tax
under section 6651(a)(2). This addition to tax must be based
upon a tax liability shown on a return--a return either filed by
the taxpayer or filed by the Secretary pursuant to section
6020(b). Sec. 6651(a)(2), (g)(2). There is nothing in the
record to indicate that the Secretary prepared such a return,2
and the addition to tax cannot be based on petitioner’s filed
return because the return reflects a zero tax liability.
The addition to tax under section 6651(a)(1) generally is
equal to 5 percent of the amount of tax required to be shown on
the return for each month or portion thereof for which the
delinquency in filing continues, up to a maximum of 25 percent.
The amount of the addition to tax under section 6651(a)(1)
generally is reduced by the amount of the addition to tax under
section 6651(a)(2) with respect to each month in which both are
otherwise applicable. Sec. 6651(c)(1). Because petitioner filed
his return over 3 years late, he is liable for the section
6651(a)(1) addition to tax in the maximum amount of 25 percent,
or $842.75. This amount is greater than the amount determined by
respondent because, due to our holding that petitioner is not
2A notice of deficiency may be issued without a return
having been filed pursuant to sec. 6020(b). Secs. 6211(a),
6212(a); Roat v. Commissioner, 847 F.2d 1379 (9th Cir. 1988),
affg. on this issue an Order of this Court.
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Last modified: May 25, 2011