- 24 -
Also, in respondent’s answering brief at 40, his only argument
regarding the section 6651(a)(1) and (2) additions to tax was as
follows:
Under I.R.C. � 7491(c), Respondent has the burden
of production with respect to any penalty, addition to
tax, or additional amounts. The burden of production
is not the same as the burden of proof. The burden of
production is less strenuous than the burden of proof,
requiring only that Respondent come forward with
sufficient evidence indicating that it is appropriate
to impose the relevant penalty or addition to tax.
Higbee v. Commissioner, 116 T.C. 438 (2001).
Respondent has shown that Petitioner did not file any
income tax returns during these years and that she
earned sufficient income to require her to file
returns. (Stip. Para. 2; Ex. 5-R, Certified
Certificate of No Record; Prop. Exs. 7-R, 8-R, and 9-R;
Transcript). See Presumption of Correctness, Argument
I, Brief for Respondent. Thus, Respondent’s burden of
production has been met. See Higbee v. Commissioner,
116 T.C. at 446-47; Lutz v. Commissioner, T.C. Memo.
2002-89.
Respondent misunderstands the requirements of section
6651(a)(2), and he fails to respond to petitioner’s arguments on
brief which do in fact recognize those requirements. Respondent
fails to recognize that section 6651(a)(2) applies only in the
case of an amount of tax shown on a return. Burr v.
Commissioner, T.C. Memo. 2002-69, affd. 56 Fed. Appx. 150 (4th
Cir. 2003); Heisey v. Commissioner, T.C. Memo. 2002-41, affd. ___
Fed. Appx. ___ (9th Cir. 2003); Watt v. Commissioner, T.C. Memo.
1986-22. Indeed, respondent’s arguments on brief are the same
arguments that the Commissioner made, and which we rejected, in
Heisey v. Commissioner, supra. Suffice it to say, a failure to
Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: May 25, 2011