- 15 - exceed 25 percent. Id. Respondent bears the burden of production with respect to the addition to tax. See sec. 7491(c); see also, e.g., Swain v. Commissioner, 118 T.C. 358, 363 (2002); Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Respondent has met his burden. The last date for petitioner to file her taxable year 2001 return was April 15, 2002. Sec. 6072(a). Petitioner’s 2001 return was not filed, however, until April 6, 2005, almost 3 years past its statutory due date and 5 days after the petition in this case was filed. The return was clearly late. “A failure to file a tax return on the date prescribed leads to a mandatory penalty unless the taxpayer shows that such failure was due to reasonable cause and not due to willful neglect.” McMahan v. Commissioner, 114 F.3d 366, 368 (2d Cir. 1997), affg. T.C. Memo. 1995-547. The taxpayer bears “the heavy burden of proving both (1) that the failure did not result from ‘willful neglect,’ and (2) that the failure was ‘due to reasonable cause’”, in order to escape the penalty. United States v. Boyle, 469 U.S. 241, 245 (1985). “Willful neglect” denotes “a conscious, intentional failure or reckless indifference.” Id. Petitioner did not establish that her failure to timely file was due to reasonable cause and not to willful neglect.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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