Michael A.Cabirac - Page 18

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               On the basis of the evidentiary record and previously cited            
          cases, we hold that respondent has not met his burden of                    
          production with respect to the appropriateness of imposing the              
          section 6651(a)(2) additions to tax.                                        
               Prior to trial, respondent filed a motion for sanctions                
          pursuant to section 6673.  Section 6673(a)(1) provides for a                
          penalty whenever it appears that proceedings have been instituted           
          or maintained by the taxpayer primarily for delay or that the               
          taxpayer’s position in the proceeding is frivolous or groundless.           
          We have already held that petitioner’s position with respect to             
          his liability for tax is frivolous.  Accordingly, we impose a               
          penalty of $2,000.                                                          

                                             An appropriate order and                 
                                        decision will be entered for                  
                                        respondent except for the                     
                                        additions to tax under section                
                                        6651(a)(2), which do not apply.               



               19(...continued)                                                       
          basis that the Court of Appeals had concluded that the                      
          Commissioner filed valid returns pursuant to sec. 6020(b) in                
          Smalldridge, whereas in Phillips, “No such returns were filed”.             
          But see Phillips v. Commissioner, 88 T.C. at 540 (Swift, J.,                
          dissenting) (citing the Court of Appeals opinion in Smalldridge             
          as a basis for concluding that there was no justification for a             
          finding that the Commissioner was unreasonable in arguing that              
          certain audit examination documents and a notice of deficiency              
          constituted a “return”).                                                    




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