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the “burden of production in any court proceeding with respect to
the liability of any individual for any * * * addition to tax”
under section 6651(a). Sec. 7491(c). To meet this burden, the
Commissioner must 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, 446
(2001). Once the Commissioner meets his burden of production,
the taxpayer must come forward with evidence sufficient to
persuade a court that the Commissioner’s determination is
incorrect. Id. at 447. The taxpayer also bears the burden of
proof with regard to issue of reasonable cause. Id. at 446.
In the present case, respondent has satisfied his burden of
production under section 7491(c) by establishing that
petitioner’s 1997, 1998, and 1999 Federal income tax returns were
not timely filed. Petitioner does not assert, nor did he present
any evidence, that the returns for the years in issue were
received or mailed before the due dates.
Section 6651(a)(1) imposes an addition to tax of 5 percent
per month of the amount of tax required to be shown on the
return, not to exceed 25 percent, for failure to timely file a
return. The addition to tax under section 6651(a)(1) is imposed
unless the taxpayer establishes that the failure was due to
reasonable cause and not willful neglect. Illness may constitute
reasonable cause so long as the taxpayer can establish that
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Last modified: May 25, 2011