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Overall, to say that respondent’s evidence in this case
shows that a return meeting the requirements of section 6020(b)
was filed is too much of a stretch, especially given respondent’s
burden of production. We therefore hold that neither petitioner
nor respondent is entitled to summary judgment on this issue.
Respondent also has not met the burden of production with
respect to the section 6654 addition to tax for failure to make
estimated tax payments. To meet this burden, respondent must
show that petitioner had a “required annual payment” as set forth
in section 6654(d). Wheeler v. Commissioner, supra at 200, 210-
212. The required annual payment equals the lesser of (1) 90
percent of the tax shown on the return for the taxable year (or
90 percent of the tax for such year if no return is filed), or
(2) 100 percent of the tax shown on the individual’s return for
the preceding taxable year (if the individual filed a return for
that preceding year). Sec. 6654(d)(1)(B). We know that 90
percent of the tax for the 2002 taxable year is $12,488.40 (90
percent of $13,876). But, respondent has not offered anything
showing either the amount of tax shown on petitioner’s 2001
return or whether petitioner failed to file a return for 2001.
Since the possibility exists that petitioner filed a return for
2001 on which the amount of tax shown was zero, thus making the
lesser of the two amounts equal to zero for purposes of section
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Last modified: November 10, 2007