Francis M. Gagliardi - Page 38




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         file a return.  McMahan v. Commissioner, 114 F.3d 366, 369 (2d               
         Cir. 1997), affg. T.C. Memo. 1995-547.                                       
              Petitioner admitted that he did not timely file his tax                 
         returns for 2000 and 2001.  Accordingly, respondent has met his              
         burden of production for the section 6651(a)(1) addition to tax              
         for 2000.  Respondent, however, bears the burden of proof for the            
         section 6651(a)(1) addition to tax for 2001 as he raised this                
         issue for the first time in the answer.  See Rule 142(a)(1);                 
         Sanderling, Inc. v. Commissioner, 66 T.C. 743, 756-760 (1976),               
         affd. in part and revd. in part on other grounds 571 F.2d 174 (3d            
         Cir. 1978); Snyder v. Commissioner, T.C. Memo. 2006-92; Paleveda             
         v. Commissioner, T.C. Memo. 1997-416, affd. without published                
         opinion 178 F.3d 1303 (11th Cir. 1999).  Our resolution of this              
         issue, however, does not depend on who bears the burden of proof.            
         See Snyder v. Commissioner, supra; see also Bhattacharyya v.                 
         Commissioner, T.C. Memo. 2007-19 n.19.                                       
              Petitioner admitted that he did not timely file his returns             
         for 2000 and 2001.  Petitioner timely filed his returns for the              
         immediately previous years (1998 and 1999).  Petitioner knew his             
         returns for 2000 and 2001 were due on April 15 of the following              
         years.  Petitioner did not exercise business care and prudence in            
         not timely filing his returns for 2000 and 2001.  See United                 
         States v. Boyle, supra at 245.  Accordingly, petitioner is liable            
         for the section 6651(a)(1) addition to tax for 2000 and 2001.                







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