- 38 -
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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