-15-
Respondent introduced evidence to prove that petitioner was
required to file a Federal income tax return for 2002, that
petitioner did not file a 2002 return, and that petitioner did
not make any estimated tax payments for 2002 (with the exception
of the withheld tax). However, respondent did not introduce
evidence sufficient to prove that petitioner had an obligation to
make any estimated tax payments for 2002. Specifically,
respondent’s burden of production under section 7491(c) required
him to produce evidence that petitioner had a required annual
payment for 2002 under section 6654(d), which in turn required
that respondent produce evidence establishing whether petitioner
filed a 2001 tax return and if so the amount of tax shown
thereon. Id. at 211-212.11 Respondent did not do so.
Consequently, respondent’s determination regarding the section
6654 addition to tax is not sustained.12
11 Although the petition is unclear in many respects and is
replete with frivolous arguments, petitioner nevertheless
asserted in the petition that “the 6654 penalties are erroneously
alleged.” Thus, respondent was put on notice that petitioner’s
liability for the sec. 6654 addition to tax was an issue.
Respondent therefore had the burden of production under sec.
7491(c) to introduce evidence that it is appropriate to hold
petitioner liable for the addition to tax. See Wheeler v.
Commissioner, 127 T.C. 200, 210 (2006).
12 We emphasize that we are not holding that petitioner was
not required to make estimated tax payments for 2002. Rather, we
hold that petitioner is not liable for the sec. 6654 addition to
tax because of respondent’s failure to meet the burden of
production.
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