- 12 - such failure continues, but not exceeding 25 percent in the aggregate, unless it is shown that such failure is due to reasonable cause and not due to willful neglect. See sec. 6651(a)(1); United States v. Boyle, 469 U.S. 241, 245 (1985); United States v. Nordbrock, 38 F.3d 440, 444 (9th Cir. 1994); Harris v. Commissioner, T.C. Memo. 1998-332. Section 7491(c) imposes the burden of production with respect to additions to tax on the Commissioner. Once the Commissioner produces evidence that it is appropriate to impose on a taxpayer the additions to tax, the taxpayer must then prove that he is not liable for them. Higbee v. Commissioner, 116 T.C. 438, 447 (2001). In this case, respondent did not satisfy his burden of production under section 7491(c). The extremely sparse record in this case includes no evidence whether original returns were filed and, if so, when.10 The only returns in the record are petitioners’ amended returns for 1999 and 2000. The only filing date in the record is the filing date for the amended returns. Because respondent has failed to produce any evidence that petitioners failed to file timely original returns for 1999 and 10In his pretrial memorandum, respondent represented that “Respondent’s agent filed substitute filed returns (SFR’s) for taxable years 1999 and 2000.” However, statements in pretrial memoranda are not evidence. Respondent did not introduce Forms 4340, Certificates of Assessments, Payments, and Other Specified Matters, or any other evidence from which we could determine that petitioners failed to file timely returns for 1999 and 2000.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011