Peter R. Geddis - Page 12

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          tax involves a question of fact.  United States v. Boyle, 469               
          U.S. 241, 249 n.8 (1985).  A pending criminal investigation does            
          not constitute reasonable cause for failing to file a tax return            
          when due.  Cooper v. United States, 834 F. Supp. 669, 673 (D.               
          N.J. 1993), affd. 9 F.3d 1539 (3d Cir. 1993).                               
               Under section 7491(c), respondent has the burden of                    
          production with respect to the section 6651(a)(1) addition to               
          tax.  Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).  To             
          meet his burden of production, respondent must come forward with            
          sufficient evidence indicating that it is appropriate to impose             
          the addition to tax.  Id.  Once respondent meets that burden of             
          production, however, the taxpayer continues to have the burden of           
          proof with regard to whether respondent’s determination of the              
          penalty is correct.  Rule 142(a); Higbee v. Commissioner, supra.            
              Respondent has satisfied his burden of production by                   
          establishing that petitioner was required to file a tax return              
          for 2001 and that petitioner did not file that return until June            
          of 2004.                                                                    
               Petitioner, at trial acknowledged that he knew that he was             
          required to file his 2001 Federal income tax return despite his             
          involvement in a criminal tax investigation.  Petitioner is                 
          liable for the section 6651(a)(1) addition to tax.                          









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