Stacy N. Davenport - Page 6




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               At trial, respondent’s only witness, Ms. Gallagher,                    
          testified that the transcript, as it relates to 2002, “shows that           
          no return was filed by Mr. Davenport, but it shows a substitute             
          for return was prepared by the IRS.”  Indeed, the transcript                
          shows “SUBST4" relating to 2002.  When Ms. Gallagher was asked              
          whether petitioner filed a return relating to 2001, she stated              
          that 2001 “is not even on this transcript [thus] no return [was]            
          filed”.  We do not arrive at the same conclusion.  The transcript           
          makes reference to 13 of petitioner’s tax years yet there is no             
          reference to 2001.  Moreover, the transcript indicates that                 
          returns were filed for certain years (i.e., “POSTED”) and not               
          filed for other years (i.e., “NONE”).  Because there is no entry            
          relating to 2001, we conclude that the transcript is insufficient           
          to prove that petitioner failed to file a return for that year.             
               Without credible evidence relating to 2001, we cannot                  
          identify the number equal to 100 percent of the tax shown on                
          petitioner’s 2001 return (i.e., the preceding year), complete the           
          comparison required by section 6654(d)(1)(B), or conclude that              
          petitioner had a required annual payment relating to 2002.                  
          Wheeler v. Commissioner, supra at 211-212.  Accordingly,                    
          respondent has not met his burden of production relating to, and            
          petitioner is not liable for, the section 6654 addition to tax.             
               Contentions we have not addressed are irrelevant, moot, or             
          meritless.                                                                  







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