A. Wayne and Linda D. Doudney - Page 12

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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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