Joseph V. Metallic - Page 5

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          that the failure to file did not result from willful neglect and            
          was due to reasonable cause.  See United States v. Boyle, 469               
          U.S. 241, 245 (1985).  To prove reasonable cause, a taxpayer must           
          show that he or she exercised ordinary business care and prudence           
          but nevertheless could not file the return when it was due.  See            
          Crocker v. Commissioner, 92 T.C. 899, 913 (1989); sec. 301.6651-            
          1(c)(1), Proced. & Admin. Regs.  Because petitioner failed to               
          present a reasonable explanation for his failure to file, nor any           
          genuine issue for trial in that regard, summary judgment is also            
          appropriate to sustain respondent's determination with respect to           
          the additions to tax under section 6651(a)(1).                              
               Additionally, respondent determined additions to tax under             
          section 6651(a)(2) for failure to pay tax.  Section 6651(a)(2)              
          provides for an addition to tax of 0.5 percent per month up to              
          25 percent for failure to pay the amount shown on a return.  This           
          addition to tax, however, applies only in the case where a return           
          has been filed.  See Spurlock v. Commissioner, T.C. Memo. 2003-             
          124; see also Burr v. Commissioner, T.C. Memo. 2002-69; Heisey v.           
          Commissioner, T.C. Memo. 2002-41, affd. 59 Fed. Appx. 233 (9th              
          Cir. 2003).  Under section 6651(g)(2), a return the Secretary               
          prepared under section 6020(b) is treated as “the return filed by           
          the taxpayer for purposes of determining the amount of the                  
          addition” under section 6651(a)(2).  For these purposes, a                  
          section 6020(b) return, in the context of section 6651(a)(2) and            






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