Judith A. Sanders-Castro - Page 16

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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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