Michael A.Cabirac - Page 9

                                        - 9 -                                         
          C.   Additions to Tax and Penalty                                           
               Section 7491(c) applies with respect to examinations that              
          are commenced after July 22, 1998, see Internal Revenue Service             
          Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.                 
          3001(c), 112 Stat. 727, and places the burden of production on              
          the Commissioner to show that the imposition of an addition to              
          tax or penalty is appropriate.  In his trial memorandum,                    
          respondent acknowledged that section 7491(c) applies to the                 
          instant case.8                                                              
               Section 6651(a)(1) provides an addition to tax for a failure           
          to file a return on or before the specified filing date unless it           
          is shown that such failure is due to reasonable cause and not due           
          to willful neglect.9  Once the Commissioner meets his initial               
          burden of production to show that the addition to tax is                    
          appropriate, the taxpayer bears the burden of proving his failure           
          to file timely the required return did not result from willful              
          neglect and that the failure was due to reasonable cause.  Higbee           
          v. Commissioner, 116 T.C. 438, 447 (2001).                                  


               8Sec. 7491(c) was added to the Code by the Internal Revenue            
          Service Restructuring and Reform Act of 1998, Pub. L. 105-206,              
          sec. 3001, 112 Stat. 726.                                                   
               9The addition to tax is equal to 5 percent of the amount of            
          the tax required to be shown on the return if the failure to file           
          is not for more than 1 month.  An additional 5 percent is imposed           
          for each month or fraction thereof in which the failure to file             
          continues, to a maximum of 25 percent of the tax.  The addition             
          to tax is imposed on the net amount due.  Sec. 6651(a)(1) and               
          (b); Pratt v. Commissioner, T.C. Memo. 2002-279.                            




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  Next

Last modified: May 25, 2011