Gloria J. Spurlock - Page 24

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          Also, in respondent’s answering brief at 40, his only argument              
          regarding the section 6651(a)(1) and (2) additions to tax was as            
                    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.                   
               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             

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