Gary Don Erwin - Page 5

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          contractor.  Respondent requested that Compliance amend its                 
          payroll taxes for 2001 and issue petitioner a Form W-2, Wage and            
          Tax Statement.                                                              
               Petitioner did not file a Federal income tax return for                
          taxable year 2001.  Accordingly, respondent prepared a substitute           
          return.                                                                     
                                     Discussion                                       
               Although petitioner does not contest his 2001 Federal income           
          tax liability stemming from the wages he received from Compliance           
          and unreported interest income, he challenges the section                   
          6651(a)(1) and 6654(a) additions to tax imposed by respondent.              
          Petitioner claims that he could not file his 2001 return because            
          he was awaiting respondent’s determination of his employment                
          status, and thereafter, because Compliance failed to issue him a            
          Form W-2 for that year.                                                     
          Section 6651(a)(1) Addition to Tax                                          
               Section 6651(a)(1) imposes an addition to tax for failure to           
          file a return by its due date.  The addition to tax equals 5                
          percent for each month or fraction thereof that the return is               
          late, not to exceed 25 percent.  Sec. 6651(a)(1).  Respondent               
          bears the burden of production with respect to the section                  
          6651(a)(1) addition to tax.  See sec. 7491(c); see also, e.g.,              
          Swain v. Commissioner, 118 T.C. 358, 363 (2002); Higbee v.                  







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