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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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