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timely file a Federal income tax return unless the failure was
due to reasonable cause and not willful neglect. Sec.
6651(a)(1).
As stated above, the record is not clear whether section
7491 applies here. In court proceedings arising in connection
with examinations beginning after July 22, 1998, section 7491(c)
places on the Commissioner the burden of producing sufficient
evidence that it is appropriate to impose the addition to tax
under section 6651(a)(1). If section 7491(c) applies, respondent
has met the burden of production relating to petitioners’
liability for the addition to tax for failure to timely file
their 1994 return because respondent has shown that petitioners
filed their 1994 return on September 3, 1996. Thus, petitioners
bear the burden of proving that the failure is due to reasonable
cause and not willful neglect. See United States v. Boyle, 469
U.S. 241, 245 (1985).
Petitioners did not address this issue at trial or on brief,
and we deem petitioners to have conceded that they are liable for
the addition to tax for failure to timely file their 1994 income
tax return. We may deem a taxpayer to have conceded an issue
that was raised in the petition if he or she made no argument at
trial or on brief relating to that issue. See Levin v.
Commissioner, 87 T.C. 698, 722-723 (1986), affd. 832 F.2d 403
(7th Cir. 1987); Zimmerman v. Commissioner, 67 T.C. 94, 104 n.7
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