T.C. Memo. 2008-113
UNITED STATES TAX COURT
SUZANNE T. BRAY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21034-05L. Filed April 24, 2008.
Charles H. Magnuson, for petitioner.
Susan S. Hu, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: Pursuant to section 6330(d),1 petitioner
seeks review of respondent’s determination to proceed with the
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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collection of petitioner’s 2000, 2001, and 2002 Federal income
tax liabilities.
Background
The parties submitted this case fully stipulated under Rule
122. We incorporate the stipulated facts and the accompanying
exhibits into our findings by this reference. Petitioner resided
in California when her petition was filed.
Petitioner failed to file a timely Federal income tax return
for 2000. Respondent prepared a substitute return for 2000 under
section 6020(b) and, on June 9, 2003, mailed petitioner a notice
of deficiency for 2000. In the notice, respondent determined
that petitioner was liable for an income tax deficiency of
$19,131 and for additions to tax under sections 6651(a)(1) and
(2) and 6654. Petitioner timely received the notice of
deficiency but did not petition this Court with respect to her
2000 tax liability. On November 10, 2003, respondent assessed an
income tax deficiency of $19,131, additions to tax under sections
6651(a)(1) and (2) and 6654, and interest and sent petitioner a
notice of balance due.2
2
The Form 4340, Certificate of Assessments, Payments, and
Other Specified Matters, for 2000 that was stipulated by the
parties as Exhibit 2-J appears to conflict with the stipulation
of fact regarding the assessment of petitioner’s 2000 liability.
Stipulation of facts par. 13 reflects that respondent’s
Examination Division made an assessment with respect to the
substitute for return it executed for 2000 pursuant to sec.
6020(b), on or around Dec. 30, 2002. The Form 4340, however,
(continued...)
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Petitioner also failed to file a timely Federal income tax
return for 2001. Respondent prepared a substitute return for
2001 under section 6020(b) and, on or about June 14, 2004, mailed
petitioner a notice of deficiency for 2001. In the notice,
respondent determined that petitioner was liable for an income
tax deficiency of $37,001 and for additions to tax under sections
6651(a)(1) and (2) and 6654. Petitioner timely received the
notice of deficiency but did not petition this Court with respect
to her 2001 tax liability.
On or around July 12, 2004, respondent received petitioner’s
Form 1040, U.S. Individual Income Tax Return, for 2000.
Petitioner reported taxable income of $102,143 and a tax
liability of $24,284. Respondent accepted petitioner’s 2000
return, assessed additional tax of $5,153, and adjusted the
assessments of the additions to tax under section 6651(a)(1) and
(2) to reflect the information reported on the return.
On September 15, 2004, respondent received petitioner’s Form
1040 for 2001. On the 2001 return, petitioner reported taxable
income of $94,012 and a tax liability of $23,023. On December
20, 2004, respondent assessed a tax deficiency of $23,023,
2
(...continued)
does not show that any tax or addition to tax was assessed with
respect to petitioner’s 2000 taxable year until Nov. 10, 2003,
after respondent had issued petitioner a notice of deficiency for
2000. We conclude, on the totality of the evidence, that the
first relevant assessments of tax, additions to tax, and interest
for 2000 did not occur until Nov. 10, 2003.
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additions to tax under section 6651(a)(1) and (2) of $5,178.60
and $3,797.64, respectively, and an addition to tax under section
6654 of $302, together with interest of $3,744.20, and sent
petitioner a notice of balance due.
On September 15, 2004, respondent also received petitioner’s
Form 1040 for 2002. On or about October 11, 2004, respondent
assessed a tax liability of $10,491 and a section 6654 addition
to tax of $351 as shown on petitioner’s 2002 return. Respondent
also assessed additions to tax for 2002 under section 6651(a)(1)
and (2) of $2,360.47 and $944.19, respectively, together with
interest of $892, and sent petitioner a notice of balance due.
On or about March 17, 2005, respondent filed a notice of
Federal tax lien with respect to petitioner’s unpaid 2000, 2001,
and 2002 tax liabilities. On March 24, 2005, respondent issued
petitioner a Notice of Federal Tax Lien Filing and Your Right to
a Hearing Under IRC 6320 for petitioner’s unpaid 2000, 2001, and
2002 Federal income tax liabilities. Petitioner timely submitted
a Form 12153, Request for a Collection Due Process Hearing. In a
letter attached to her request petitioner stated that Boeing
Aircraft Co. (Boeing), the former employer of petitioner’s
deceased husband, Garnett L. Bray (Mr. Bray), submitted to the
Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statement,
for 2000 and 2002 reporting income to Mr. Bray of $33,700 and
$38,949.75, respectively. According to petitioner, those amounts
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were erroneous because petitioner did not receive the payments
reported by Boeing, and more importantly, Mr. Bray died on May
24, 1999, and thus was not a Boeing employee during those years.
On September 28, 2005, the hearing officer to whom
petitioner’s case was assigned conducted a telephone section 6320
hearing (hearing) with petitioner’s representative.3 During the
hearing, the hearing officer informed petitioner’s representative
that all procedural requirements had been met in filing the
Federal tax lien.4 Petitioner’s representative did not raise any
spousal defenses or offer any collection alternatives to
respondent except the possibility of submitting an offer-in-
compromise (OIC). The hearing officer provided information to
petitioner’s representative with regard to submitting an OIC, but
petitioner did not pursue this option.5
3
The notice of determination states that petitioner’s
authorized representative agreed to a telephone hearing in lieu
of a face-to-face hearing.
4
The parties stipulated that the hearing officer confirmed
and verified that petitioner received the requisite notice and
demand for payment, see sec. 6303, and that the hearing officer
complied with the verification requirement of sec. 6330(c)(1).
5
The supporting statement attached to the notice of
determination states the following with respect to petitioner’s
announced intention to submit an OIC:
The power of attorney stated that he plans to file an
offer in compromise as the taxpayer’s collection
alternative. The Settlement Officer was under the
impression that the offer was in the process of being
completed for consideration. Appeals advised the power
(continued...)
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Although respondent maintains that petitioner’s 2000
underlying tax liability was not properly at issue during
petitioner’s hearing, the hearing officer nevertheless determined
that Boeing erroneously reported to the IRS the $33,700 in wages
for Mr. Bray for that year.6 Because petitioner had included
that amount in income on her 2000 return, the hearing officer
advised petitioner’s representative to file a Form 1040X, Amended
U.S. Individual Income Tax Return, to change the adjusted gross
income listed on petitioner’s previously filed 2000 return.7
Following the hearing, petitioner filed an amended 2000 return,
and as a result, respondent abated $10,452 of petitioner’s 2000
tax liability and made corresponding adjustments to the amounts
assessed under section 6651(a)(1) and (2).
5
(...continued)
of attorney that a 60 day delay prior to the
commencement of enforced collections is not
unreasonable while he pursues the offer outside the CDP
arena. The hearing is the end of the process and
Appeals will not hold this appeal open any longer.
The appropriateness of the hearing officer’s action regarding the
proposed OIC is not one of the stipulated issues.
6
Petitioner does not argue that respondent’s position
regarding petitioner’s ability to challenge the underlying tax
liability for 2000 is impeached by the hearing officer’s decision
to adjust Mr. Bray’s income for 2000. See Behling v.
Commissioner, 118 T.C. 572 (2002).
7
The hearing officer acknowledged that Boeing also
mistakenly reported the $38,949 in wages for Mr. Bray in 2002 but
that this error by Boeing did not affect respondent’s assessment
of petitioner’s 2002 tax liability because petitioner did not
include this amount in income on her 2002 return.
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On October 11, 2005, the Appeals Office issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 sustaining the filing of the notice of Federal tax
lien for 2000, 2001, and 2002.
On November 8, 2005, petitioner timely petitioned this Court
challenging respondent’s determination.8 Petitioner argues that
the additions to tax and interest attributable to 2000, 2001, and
2002 should be abated.9 According to petitioner, she is not
liable for the additions to tax and interest amounts for 2000,
2001, and 2002 because she had reasonable cause for her filing
and payment delays.10 Petitioner contends that Boeing assumed
responsibility for preparing her 2000 return and submitting it to
her for filing. Accordingly, petitioner claims that Boeing is
responsible for the delay in filing and payment with respect to
2000. Petitioner further argues that Boeing’s delay in preparing
her 2000 return prevented her from timely meeting her filing and
payment obligations for 2001 and 2002. Petitioner concludes that
8
Petitioner filed an amended petition on Feb. 15, 2006, and
a second amended petition on Apr. 21, 2006.
9
The parties agree that petitioner’s underlying tax
liabilities for 2000, 2001, and 2002, excluding any additions to
tax and accrued interest, are $13,832, $23,023, and $10,491,
respectively.
10
While petitioner argues in her petition that respondent
should abate interest for 2000, 2001, and 2002, the parties
stipulated that the only issues for decision concern petitioner’s
liability for the additions to tax under sec. 6651(a)(1) and (2)
and sec. 6654.
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the Appeals Office’s determination to uphold the validity of the
notice of Federal tax lien should not be sustained.
Discussion
I. Collection Hearing Procedure
Section 6321 imposes a lien on all property and property
rights of a taxpayer liable for taxes where a demand for the
payment of the taxes has been made and the taxpayer fails to pay
those taxes. Section 6320(a) requires the Secretary to send
written notice to the taxpayer of the filing of a notice of lien
and of the taxpayer’s right to an administrative hearing on the
matter. Section 6320(b) affords the taxpayer the right to a fair
hearing before an impartial hearing officer. Section 6320(c)
requires that the administrative hearing be conducted pursuant to
section 6330(c), (d) (other than paragraph (2)(B) thereof), and
(e). At the hearing, a taxpayer may raise any relevant issue,
including appropriate spousal defenses, challenges to the
appropriateness of the collection action, and collection
alternatives. Sec. 6330(c)(2)(A). A taxpayer is precluded,
however, from contesting the existence or amount of the
underlying tax liability unless the taxpayer failed to receive a
notice of deficiency for the tax liability in question or did not
otherwise have an opportunity to dispute the tax liability. Sec.
6330(c)(2)(B); see also Sego v. Commissioner, 114 T.C. 604, 609
(2000).
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Following a hearing, the Appeals Office is required to issue
a notice of determination regarding the validity of the filed
Federal tax lien. In making a determination, the Appeals Office
is required to take into consideration: (1) The verification
presented by the Secretary that the requirements of applicable
law and administrative procedures have been met, (2) the relevant
issues raised by the taxpayer, and (3) whether the proposed
collection action appropriately balances the need for efficient
collection of taxes with a taxpayer’s concerns regarding the
intrusiveness of the proposed collection action. Sec.
6330(c)(3). If the taxpayer disagrees with the Appeals Office’s
determination, the taxpayer may seek judicial review by appealing
to this Court. Sec. 6330(d). Where the underlying tax liability
is properly at issue, the Court reviews any determination
regarding the underlying tax liability de novo. Sego v.
Commissioner, supra at 610. Where the underlying tax liability
is not properly at issue, the Court will review the
administrative determination of the Appeals Office for abuse of
discretion. Lunsford v. Commissioner, 117 T.C. 183, 185 (2001);
Sego v. Commissioner, supra at 610; Goza v. Commissioner, 114
T.C. 176, 182 (2000). The Appeals Office abuses its discretion
if its determination is exercised “arbitrarily, capriciously, or
without sound basis in fact.” Mailman v. Commissioner, 91 T.C.
1079, 1084 (1988).
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II. Validity of Notice of Federal Tax Lien
Petitioner argues that we should reverse the Appeals
Office’s determination upholding the validity of the notice of
Federal tax lien and abate the additions to tax relating to her
unpaid tax liabilities for 2000, 2001, and 2002. Petitioner
contends that the additions to tax should be abated because she
(1) had reasonable cause under section 6651(a)(1) for failing to
timely file her 2000, 2001, and 2002 returns, (2) had reasonable
cause under section 6651(a)(2) for failing to pay her 2000, 2001,
and 2002 tax liabilities by their respective due dates, and (3)
is not liable for the addition to tax under section 6654 for
failure to make estimated tax payments for 2000, 2001, or 2002.
According to petitioner, she lived with Mr. Bray in various
locations outside the United States while he worked for Boeing.
During Mr. Bray’s employment with Boeing, Boeing handled the
couple’s tax preparations and filings through a corporate filing
program extended to its overseas employees. Petitioner contends
that at the time of her husband’s death, she had no experience
with domestic taxing authorities. Petitioner asserts that, in
view of the difficult circumstances surrounding her husband’s
death, she asked Boeing to prepare and file her 1999 and 2000
Federal income tax returns. Petitioner claims that Boeing
assumed responsibility for filing her 1999 and 2000 returns and,
accordingly, is responsible for the late filing of her 2000
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return. Petitioner further states that she failed to file timely
2001 and 2002 returns because she believed that she could not
file those returns until her 2000 return was filed.
A. 2000 and 2001
Petitioner’s only arguments with respect to 2000 and 2001
concern her liability for the additions to tax. Petitioner’s
arguments constitute challenges to her underlying tax liability
for those years. See Katz v. Commissioner, 115 T.C. 329, 339
(2000) (underlying tax liability includes tax deficiency,
additions to tax, and interest); see also Montgomery v.
Commissioner, 122 T.C. 1, 7-8 (2004). Because petitioner
concedes that she received notices of deficiency for 2000 and
2001, she is precluded by section 6330(c)(2)(B) from contesting
her underlying tax liability for those years. Accordingly, we
review the Appeals Office’s determination to uphold the filing of
the notice of Federal tax lien with respect to 2000 and 2001 for
abuse of discretion.
The hearing officer verified that all requirements of
applicable law or administrative procedures were met. The
hearing officer verified that the proper assessments were made
and that notice and demand for payment was sent to petitioner’s
last known address. In response to petitioner’s request the
hearing officer conducted a hearing with petitioner’s
representative. At the hearing petitioner’s representative did
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not raise any spousal defenses or provide any arguments regarding
the appropriateness of the collection action. Petitioner’s
representative also failed to offer any collection alternatives
at the hearing. Although the prospect of an OIC was discussed
with the hearing officer at the hearing, petitioner did not
submit such an offer either during the hearing process or during
a reasonable period after the hearing.11 The hearing officer
concluded that the filing of the notice of Federal tax lien
balanced the need for efficient collection of taxes with
petitioner’s concerns that the collection action be no more
intrusive than necessary. Accordingly, we conclude that the
hearing officer did not abuse her discretion in sustaining the
filing of the notice of Federal tax lien for 2000 and 2001.
B. 2002
Petitioner did not receive a notice of deficiency for 2002.
Petitioner’s underlying 2002 tax liability was thus properly at
issue at her hearing, and we review respondent’s determination
with respect to the 2002 additions to tax de novo.12
11
Petitioner has waived any argument that she might have
had regarding the manner in which the hearing officer dealt with
petitioner’s announced intention to submit an OIC by not
including the issue in the stipulated issues to be decided by
this Court.
12
Respondent concedes that petitioner’s 2002 tax liability
is subject to de novo review.
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Under section 7491(c), respondent is required to carry the
burden of producing evidence to support the imposition of an
addition to tax. To meet this burden, respondent must come
forward with sufficient evidence indicating that it is
appropriate to impose the addition to tax. See Higbee v.
Commissioner, 116 T.C. 438, 446 (2001). After respondent meets
his burden of production, petitioner must come forward with
sufficient evidence to persuade the Court that respondent’s
determination is incorrect. Id. at 446-447. Notwithstanding
section 7491(c), petitioner bears the burden of producing
evidence to demonstrate reasonable cause. Id.
1. Section 6651(a)(1)
Section 6651(a)(1) imposes an addition to tax for failure to
file a timely Federal income tax return unless the taxpayer can
demonstrate that such failure is due to reasonable cause and not
due to willful neglect.13 Reasonable cause for the failure to
file a timely return exists if the taxpayer exercised ordinary
business care and prudence but was unable to file the return
within the time prescribed by law. Sec. 301.6651-1(c)(1),
Proced. & Admin. Regs.
13
The amount of the addition to tax is 5 percent of the
amount required to be shown as tax on the return for each month
that the delinquency continues, up to a maximum of 25 percent.
Sec. 6651(a)(1).
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Respondent determined that petitioner is liable for an
addition to tax under section 6651(a)(1) for 2002. The parties
stipulated that petitioner filed her 2002 return on September 15,
2004, over a year after its due date. We thus conclude that
respondent has produced sufficient evidence to demonstrate that
the section 6651(a)(1) addition to tax is appropriate. See
Higbee v. Commissioner, supra at 447.
Petitioner argues that she had reasonable cause for failing
to file a timely 2002 return because she believed that she could
not file the return until she filed her 2000 return. According
to petitioner, Boeing, which petitioner contends assumed
responsibility for filing her 2000 return, did not complete the
preparation of her 2000 return until June 14, 2004.
Consequently, the IRS did not receive petitioner’s 2000 return
until July 21, 2004, several years after its due date.
Petitioner filed her 2002 return approximately 2 months after
filing her 2000 return.
A taxpayer’s mistaken belief that no return is required
under the law does not necessarily constitute reasonable cause
for failure to file a return. See Beck Chem. Equip. Corp. v.
Commissioner, 27 T.C. 840, 860 (1957); P. Dougherty Co. v.
Commissioner, 5 T.C. 791, 800 (1945), affd. 159 F.2d 269 (4th
Cir. 1946). A taxpayer who deliberately fails to file a return
must use reasonable care to ascertain that no return was
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necessary.14 See Beck Chem. Equip. Corp. v. Commissioner, supra
at 858-860. There is no evidence that petitioner used reasonable
care in deciding not to file her 2002 return on time. Petitioner
offered no evidence that she sought out or received professional
advice indicating that she was precluded from filing her 2002
return on time. Petitioner provided no explanation for her
erroneous conclusion that she could not file her 2002 return
until her 2000 return was filed. Furthermore, petitioner’s
mistaken belief regarding her inability to file her 2002 return
was based on her incorrect assumption that Boeing, and not she,
was responsible for the delinquent filing of her 2000 return.15
We conclude, therefore, that petitioner did not have reasonable
cause for failing to file a timely 2002 return.
14
The Supreme Court recognized in United States v. Boyle,
469 U.S. 241, 250-251 & n.9 (1985), that reasonable reliance on
the advice of a tax adviser that no return is required to be
filed may constitute reasonable cause for a failure to file the
return. See also Zabolotny v. Commissioner, 97 T.C. 385, 400-401
(1991) (reasonable reliance on a tax adviser that no return is
required to be filed may constitute reasonable cause), affd. in
part and revd. in part on other grounds 7 F.3d 774 (8th Cir.
1993).
15
Even if petitioner’s underlying tax liability for 2000
were properly at issue, petitioner’s reliance on Boeing to file
her 2000 return is not reasonable cause under the well-
established principle that the failure to file a timely return is
not excused by the taxpayer’s reliance on an agent to file a
required return. See United States v. Boyle, supra at 252.
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2. Section 6651(a)(2)
Section 6651(a)(2) imposes an addition to tax for failure to
pay the amount of tax shown on the taxpayer’s Federal income tax
return on or before the payment due date, unless such failure is
due to reasonable cause and not due to willful neglect.16 A
failure to pay will be considered due to reasonable cause if the
taxpayer makes a satisfactory showing that he exercised ordinary
business care and prudence in providing for payment of his tax
liability and was nevertheless either unable to pay the tax or
would suffer undue hardship if he paid on the due date. Sec.
301.6651-1(c)(1), Proced. & Admin. Regs.
Respondent determined that petitioner is liable for an
addition to tax under section 6651(a)(2) for 2002. The parties
stipulated that petitioner filed her 2002 return on September 15,
2004, over a year after its due date. Petitioner’s 2002 return
showed a tax liability of $10,491. Petitioner has not paid any
of the amount owed. We thus conclude that respondent has
produced sufficient evidence to demonstrate that petitioner is
liable for the section 6651(a)(2) addition to tax. See Wheeler
v. Commissioner, 127 T.C. 200, 210 (2006).
16
The sec. 6651(a)(2) addition to tax is 0.5 percent of the
amount of tax shown on the return, with an additional 0.5 percent
per month during which the failure to pay continues, up to a
maximum of 25 percent.
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Petitioner asserts the same reasonable cause argument for
the section 6651(a)(2) addition to tax that she asserts for the
section 6651(a)(1) addition to tax–-her mistaken belief that she
could not file her 2002 return until she filed her 2000 return.17
Petitioner, however, did not offer any evidence that she was
unable to pay the tax owed or that she would have suffered undue
hardship if she had paid the tax on the due date. Accordingly,
we hold that petitioner did not have reasonable cause for failing
to pay her 2002 tax liability when due.
3. Section 6654
Section 6654(a) imposes an addition to tax for the
underpayment of any installment of estimated tax.18 The addition
to tax under section 6654 is calculated by applying the section
6621 underpayment rate to the amount of the estimated tax
underpayment for the period of the underpayment. Sec. 6654(a)
and (b). Except as provided in section 6654(e)(3)(B), no
reasonable cause exception exists for the section 6654(a)
17
Petitioner offers no explanation as to why she did not
remit payment after she filed her 2002 return.
18
Sec. 6654(c)(1) requires the payment of four installments
of a taxpayer’s estimated tax liability for each taxable year.
Each required installment of estimated tax is equal to 25 percent
of the required annual payment. Sec. 6654(d)(1)(A). The
required annual payment is generally equal to the lesser of: (1)
90 percent of the tax shown on the individual’s return for that
year (or, if no return is filed, 90 percent of his or her tax for
such year), or (2) if the individual filed a return for the
immediately preceding taxable year, 100 percent of the tax shown
on that return. Sec. 6654(d)(1)(B).
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addition to tax. However, no addition to tax is imposed under
section 6654(a) with respect to any underpayment to the extent
the Secretary determines that by reason of casualty, disaster, or
other unusual circumstances the imposition of such addition to
tax would be against equity or good conscience. Sec.
6654(e)(3)(A). Additionally, no addition to tax is imposed under
section 6654(a) with respect to any underpayment if the Secretary
determines that the taxpayer retired (after reaching age 62) or
became disabled in either the taxable year for which estimated
tax payments were required or in the taxable year preceding such
year and such underpayment was due to reasonable cause and not to
willful neglect. Sec. 6654(e)(3)(B).
Respondent’s burden of production under section 7491(c)
requires him to produce evidence that petitioner had a required
annual payment for 2002 under section 6654(d). See Wheeler v.
Commissioner, supra at 211. The parties stipulated that
petitioner filed both a 2002 return and a return for the
preceding tax year, 2001. On the basis of this information we
are able to determine that petitioner had a required annual
payment for 2002 that was payable in installments under section
6654. Cf. id. at 211-212 (Court unable to conclude that taxpayer
had a required annual payment because no evidence that taxpayer
filed a return for the preceding taxable year). Petitioner did
not make any estimated tax payments for 2002. We conclude that
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respondent has produced sufficient evidence to demonstrate that
petitioner is liable for the section 6654 addition to tax.
Petitioner argues that she is not liable for the addition to
tax under section 6654. Petitioner again asserts that she relied
on Boeing to file her 2000 return and that she mistakenly
believed that she had to file her 2000 return before she could
file her 2002 return. Petitioner, however, does not directly
address why she failed to make the estimated tax payments
required for 2002. Moreover, we are not persuaded that the
section 6654 addition to tax should be waived under section
6654(e). Petitioner does not claim that she retired or became
disabled in 2002. Moreover, the record does not establish that
petitioner’s failure to make estimated tax payments in 2002 was
due to casualty, disaster, or other unusual circumstances, and we
are not persuaded that the imposition of the section 6654
addition to tax would be against equity and good conscience. We
conclude that petitioner is liable for the section 6654 addition
to tax for 2002.
We have considered all the other arguments made by the
parties, and to the extent not discussed above, conclude those
arguments are irrelevant, moot, or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.