John J. Zanath - Page 12




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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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