Phyllis Herrmann Witcher - Page 12




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          142(a)(1).6  We conclude that petitioner has not established that           
          she is entitled to a deduction for depreciation.                            
          4.   Section 6651(a)(1) Addition to Tax                                     
               Section 6651(a)(1) imposes an addition to tax on the failure           
          to file timely any return required to be filed, unless it is                
          shown that such failure is due to reasonable cause and not due to           
          willful neglect.                                                            
               The Secretary has the burden of production in any court                
          proceeding with respect to the liability of the individual for              
          any penalty, addition to tax, or additional amount imposed.  Sec.           
          7491(c); see Higbee v. Commissioner, 116 T.C. 438, 446 (2001).              
               Petitioner had requested, and was granted, extensions of               
          time to file her return until August 15 and August 26, 1999.                
          Petitioner stipulated that she filed her return for the 1998 tax            
          year with respondent on October 18, 1999.  Petitioner testified             
          that she thought that she filed an additional request for an                
          extension to file her return extending the filing date to October           
          15, 1999.  After she was evicted from her house in July 1999,               
          petitioner in January 2000 permanently moved into the condominium           
          that she owned and had previously rented out.  Petitioner                   
          asserts that she was living in temporary housing and lacked                 


               6  Sec. 7491(a) does not apply to place the burden of proof            
          on respondent because petitioner has neither alleged that sec.              
          7491 is applicable nor established that she complied with the               
          requirements of sec. 7491(a)(2)(A) and (B) to substantiate items,           
          maintain required records, and fully cooperate with respondent’s            
          reasonable requests.                                                        




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