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unless the taxpayer establishes that the failure was due to
reasonable cause and not willful neglect.4
Petitioners did not present any evidence as to the reasons
for their failure to timely file and pay the tax that was due.
Under such circumstances we would have no basis to conclude that
the failure to file and failure to pay were due to reasonable
cause and not due to willful neglect. We conclude that there is
no basis to abate the additions to tax under these circumstances.
Reviewed and adopted as the report of the Small Tax Case
Division.
To give effect to the foregoing,
An appropriate decision will
be entered for respondent.
4 The parties have not presented argument as to the
application of sec. 7491. The Commissioner bears the burden of
production in any Court proceeding with respect to the liability
for any addition to tax. Sec. 7491. 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). The taxpayer bears the burden of proof that the
Commissioner’s determination is incorrect and that there was
reasonable cause. Id. at 446-447.
Assuming, without deciding, that respondent has the burden
of production, see Goodwin v. Commissioner, T.C. Memo. 2003-289;
Joye v. Commissioner, T.C. Memo. 2002-14, there is no question
but that petitioners were required to file a tax return and
failed to file the 1997 tax return until Mar. 1, 2001. Further,
petitioners did not remit payment prior to, or with, the filing
of the delinquent return.
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