Gary T. Mackey - Page 12

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          meet the burden of production under section 7491(c), the                    
          Commissioner need only make a prima facie case that imposition of           
          the penalty or addition to tax is appropriate; he need not negate           
          the existence of any circumstantial defense such as reasonable              
          cause.  Higbee v. Commissioner, 116 T.C. 438, 446 (2001); H.                
          Conf. Rept. 105-599, at 241 (1998), 1998-3 C.B. 747, 995; see               
          sec. 6654(e)(3) (providing for waiver of the addition to tax                
          under certain extenuating circumstances).                                   
               C.  Discussion                                                         
               We are concerned only with 1995, 1996, and 1997.  Because              
          petitioner did not file returns for those years, the                        
          applicability of the $500 de minimis exception under section                
          6654(e)(1) discussed above is determined on the basis of                    
          petitioner’s actual tax for those years, less wage withholding.7            
          The stipulation of settled issues filed by the parties                      
          establishes that petitioner’s tax, as so defined, for each of               
          those years exceeded $500.  Those stipulations also preclude the            
          applicability of the section 6654(e)(2) exception (zero tax for             
          preceding year) to 1996 and 1997.  However, nothing in the record           

               6(...continued)                                                        
          Pub. L. 105-206, sec. 3001(c)(1), 112 Stat. 727.  In his brief,             
          respondent concedes that his examination of petitioner’s 1995,              
          1996, and 1997 taxable years (i.e., the years remaining at issue)           
          commenced after July 22, 1998.                                              
               7  The stipulation of settled issues categorizes                       
          petitioner’s earned income for the years 1995-97 as nonemployee             
          compensation, which by definition is not subject to wage                    
          withholding.  See secs. 3401(a), 3402(a).                                   




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