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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.
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