- 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 toPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011