Nathaniel Caleb Avery - Page 15

                                        -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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