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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.
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