-32-
that the Commissioner’s determination is incorrect.12 Id. at
447. Respondent need not present evidence as to reasonable cause
in order to meet his burden. Id. at 446-447. Petitioner bears
the burden of proving that any failure on its part is due to
reasonable cause and not due to willful neglect. Rule 142(a)(1);
United States v. Boyle, supra at 245.
Except as to the taxable quarter ended December 31, 1996,
for which the record establishes that petitioner filed a timely
Form 941, respondent has met his burden of production as to all
of the determined additions to tax. The record establishes as to
those additions to tax that: (1) Petitioner was required to file
Forms 941 and was required to deposit the referenced taxes, and
(2) petitioner failed to file those returns and failed to deposit
those taxes.
As to petitioner’s burden, we understand petitioner to argue
primarily that it is not liable for the additions to tax by
virtue of the reasonable cause exception.13 More specifically,
12 Sec. 7491(c) does not operate to shift the burden of
proof on the Commissioner. It only refers to the burden of
production. The burden of proof is still with petitioner. Sec.
7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).
13 Relying on Kochansky v. Commissioner, 92 F.3d 957, 959
(9th Cir. 1996), affg. in part and revg. in part T.C. Memo.
1994-160, petitioner also argues that it is not liable for the
additions to tax in that the Court of Appeals for the Ninth
Circuit has not decided the substantive issue at hand. We do not
read the opinion of the Court of Appeals in Kochansky to stand
for the broad proposition stated by petitioner, and we find
(continued...)
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