                  T.C. Summary Opinion 2005-171



                     UNITED STATES TAX COURT



                GEORGES Z. ZAKHEM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10753-04S.               Filed November 21, 2005.


     Georges Z. Zakhem, pro se.

     Frederick J. Lockhart, Jr., for respondent.



     DEAN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code of 1986, as amended, and all Rule references are to

the Tax Court Rules of Practice and Procedure.    The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.
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       Respondent determined the following deficiencies in and

additions to petitioner’s Federal income taxes for 1995, 1996,

and 1997:

                            Additions to Tax Under Sections
Year        Deficiency     6651(a)(1)     6651(a)(2)     6654
1995         $4,856           $610             --        $118
1996          6,978            758           $843         158
1997         10,243          1,047          1,163         216


       After concessions,1 the issues for decision are: (1) Whether

respondent’s period of limitations within which to assess the

1995, 1996, and 1997 Federal income taxes against Georges Z.

Zakhem (petitioner) has expired; and (2) if not, whether

petitioner is liable for additions to tax under sections

6651(a)(1) and 6654.

                             Background

       The stipulated facts and exhibits received into evidence are

incorporated herein by reference.    At the time the petition in

this case was filed, petitioner resided in Boulder, Colorado.

       During the taxable years at issue, petitioner was employed

by Exabyte Corporation (Exabyte) in Boulder, Colorado.    For the

years 1995, 1996, and 1997, Exabyte issued Forms W-2, Wage and

Tax Statement, to petitioner which incorrectly reported

petitioner’s Social Security number by one digit.    By letter



       1
      Respondent concedes that the addition to tax under sec.
6654 asserted in the notice of deficiency for 1995 and the
additions to tax under sec. 6651(a)(2) asserted in the notices of
deficiency for 1996 and 1997 do not apply to this case.
                                 - 3 -

dated October 24, 1998, the Social Security Administration

brought the error to Exabyte’s attention and petitioner’s Social

Security number was corrected.

     Respondent determined that petitioner failed to file Form

1040, U.S. Individual Income Tax Return, for the years 1995,

1996, and 1997 and issued a notice of deficiency for each of

these years.   Petitioner filed a timely petition for

redetermination with the Court of the 3 years at issue.2

     Petitioner alleges in his petition that it is “unthinkable”

for respondent “to ‘wake’ up 8 years later and lay this undue

burden of proof on [him]” to show that the taxes, interest, and

additions to taxes assessed against him are improper.   Petitioner

is not contesting the amount of income reported on the Forms W-2.



     2
      Rule 34(b)(7) requires that a petition must be signed by
either petitioner or petitioner’s counsel. In this case,
petitioner failed to sign his petition, which may be a ground for
dismissal of the case under Rule 34(a)(1). The Court has been
liberal in treating as a petition any document filed by a
taxpayer within the 90-day period, if it was intended as a
petition. O’Neil v. Commissioner, 66 T.C. 105, 107 (1976);
Truskowsky v. Commissioner, T.C. Memo. 1988-319. To be deemed a
petition, the document must contain some objective indication
that the petitioner contests the deficiency determined by the
Commissioner against him. O’Neil v. Commissioner, supra;
Truskowsky v. Commissioner, supra. If such documents do not
comply with the form and content requirements for petitions, the
Court is liberal in allowing the taxpayer to file an amended
petition to correct the technical defects. O’Neil v.
Commissioner, supra; Truskowsky v. Commissioner, supra.
Petitioner intended to contest and has actually contested the
1995, 1996, and 1997 deficiencies determined against him.
Therefore, the petition conferred jurisdiction upon the Court for
those taxable years.
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Instead, petitioner contends that he does not owe any Federal tax

liabilities because he timely filed the tax returns at issue.

                             Discussion

Section 6501

     Section 6501(a) sets forth limitations on assessment and

provides as a general rule that Federal income taxes must be

assessed within 3 years after the filing of the return.    However,

if the taxpayer fails to file a return, the statute of limitation

is never set in operation, and the IRS may assess the tax at any

time.    Sec. 6501(c)(3); sec. 301.6501(c)-1(c), Proced. & Admin.

Regs.

     If the Court finds that petitioner timely filed the returns

for 1995, 1996, and 1997, respondent’s assessments are time-

barred under section 6501(a).   If, however, the Court finds that

petitioner did not file the returns, the assessments are valid

because respondent may assess the tax at any time.   In the latter

case, the Court will also address whether petitioner is liable

for additions to tax under sections 6651(a)(1) and 6654.

     The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.3   Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).


     3
      Petitioner has not raised the issue of sec. 7491(a) which
shifts the burden of proof to the Commissioner in certain
situations. This Court concludes that sec. 7491 does not apply
because petitioner has not produced any evidence that establishes
the preconditions for its application.
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     Petitioner argues that it was Exabyte’s failure to correctly

report his Social Security number on his Forms W-2, rather than

his failure to file the returns, that resulted in respondent’s

lack of records of his filing tax returns.   According to the

record in this case, Exabyte corrected the Social Security number

on petitioner’s Forms W-2 at the end of 1998.   Petitioner

testified that Exabyte alerted him to the error in August 1999

and that he provided the documentation required to correct the

error.

     Respondent’s search included not only petitioner’s correct

Social Security number, but also encompassed the “wrong” Social

Security number reported by Exabyte4 as well as the Social

Security number for petitioner’s wife.   Respondent did not find

any returns filed under any of the Social Security numbers.     In

support of its determination that petitioner failed to file

returns for the years at issue, respondent presented three

Certificates of Lack of Record for Federal income tax, one for

each of the Social Security numbers searched, for tax periods

December 31, 1995, through December 31, 1997.   In light of

respondent’s evidence, the Court is not convinced that it was

Exabyte’s error, rather than petitioner’s failure to file the

returns, that caused the respondent’s searches to indicate that

petitioner’s returns were not filed.


     4
      Respondent represented that the Social Security number
belonged to a different taxpayer who also failed to file returns
for 1995, 1996, and 1997.
                               - 6 -
     At trial, petitioner offered photocopies of what he contends

are retained copies of his 1995, 1996, and 1997 tax returns as

evidence that he timely filed the returns.   All of the copies

correctly reported petitioner’s Social Security number.   The

Court, however, has reason to doubt whether the retained copies

are, in fact, retained copies of filed 1995, 1996, and 1997 tax

returns.

     When petitioner’s Forms W-2 are compared to the retained

copies, several discrepancies stand out.    The retained 1995 and

1996 copies show more income than respondent’s records or the

Forms W-2.   For 1995, petitioner claimed a Federal income tax

withholding credit of $7,451 when Form W-2 shows a withholding of

only $2,414.   For 1996, he claimed a credit of $7,506 when Form

W-2 shows $3,605.   For 1997, he claimed a credit of $11,063 when

Form W-2 shows $5,670.   Petitioner has failed to establish a

reason for claiming almost double, and in 1995, triple, the

amount of Federal income tax withholding credits as shown on the

Forms W-2.

     Assuming that the retained copies were filed, petitioner

should have received tax refunds for years 1995, 1996, and 1997

based on the Federal income tax withholding credits claimed.

Petitioner testified that he never received any of the refunds.

He testified that he thought it was because the Department of

Education took the refunds and applied them against the

outstanding balance of his student loans.    Petitioner failed to
                               - 7 -
contact the Department of Education “for a while” with respect to

his delinquent student loan payments, and a judgment was entered

against him.   Petitioner also has failed to present any

documentation to show that the Department of Education has either

collected the refund or credited the amount of the refund against

his outstanding student loan or the judgment.

     Petitioner failed to file his State income tax returns.

Respondent produced a Certificate of Failure to File Individual

Income Tax Return(s) from the Colorado Department of Revenue for

the years 1995, 1996, and 1997 as evidence in support.     As with

the Federal income tax returns, petitioner argues that Colorado

has no record of his filings because Exabyte incorrectly reported

his Social Security number on the Forms W-2 for 1995, 1996, and

1997.

     Petitioner did not present any other evidence to

substantiate that the returns were in fact filed.   Petitioner’s

testimony that he filed the returns at issue, without more, is

insufficient to sustain a ruling in his favor.   See Schwechter v.

Commissioner, T.C. Memo. 2000-36; see also Rakosi v.

Commissioner, T.C. Memo. 1993-68 (taxpayer failed to prove that

she filed her return where she did not produce any documentary

evidence of timely mailing and relied solely on self-serving

testimony of herself and her husband), affd. 46 F.3d 1144 (9th

Cir. 1995).
                               - 8 -

     Accordingly, the Court finds that petitioner has failed to

sustain his burden of proof to show that he filed tax returns for

1995, 1996, and 1997.

     Petitioner’s Tax Liabilities for 1995, 1996, and 1997

     For each of the years at issue, petitioner’s income was

computed from his Exabyte wages income, allowing him a standard

deduction and one exemption.   The resulting tax on his taxable

income was then credited with the amount of Federal income tax

withholding shown on the Form W-2.     Petitioner alleges that he

has medical expenses that entitle him to a larger itemized

deduction, but he has failed to produce any documentation in

support of his contention.   In the absence of any corroborating

evidence from the petitioner, respondent’s determinations are

presumed correct.

Additions to Tax Under Section 6651(a)(1)

     Respondent determined an addition to tax under section

6651(a)(1) for 1995, 1996, and 1997 asserting that petitioner

failed to file Federal income tax returns for those years.

Section 7491(c) imposes the burden of production in any court

proceeding on the Commissioner with respect to the liability of

any individual for penalties and additions to tax.     Higbee v.

Commissioner, 116 T.C. 438, 446 (2001); Trowbridge v.

Commissioner, T.C. Memo. 2003-164, affd. 378 F.3d 432 (5th Cir.

2004).   In order to meet the burden of production under section
                                 - 9 -

7941(c), the Commissioner need only make a prima facie case that

imposition of the penalty or addition to tax is appropriate.

Higbee v. Commissioner, supra.

     The burden of proof remains on the petitioner, who must

prove that his failure to file was: (1) Due to reasonable cause

and (2) not due to willful neglect.      Sec. 6651(a); United States

v. Boyle, 469 U.S. 241, 245 (1985); Higbee v. Commissioner, supra

at 446-447.   A failure to file a Federal income tax return is due

to reasonable cause if the taxpayer exercised ordinary business

care and prudence and nevertheless was unable to file the return

within the prescribed time.   Barkley v. Commissioner, T.C. Memo.

2004-287; sec. 301.6651-1(c)(1), Proced. & Admin. Regs.     Willful

neglect means a conscious, intentional failure or reckless

indifference.   United States v. Boyle, supra at 245.

     Respondent has carried his burden of production by

introducing into evidence certified copies of Form 4340,

Certificate of Assessments, Payments, and Other Specified

Matters, with respect to petitioner’s 1995, 1996, and 1997

taxable years, establishing that petitioner did not file timely

Federal income tax returns for those years.     See Davis v.

Commissioner, 115 T.C. 35, 40-41 (2000); Downey v. Commissioner,

T.C. Memo. 2005-215.
                              - 10 -

     Petitioner introduced no evidence or any legally sufficient

reason for his failure to file a timely return.    Therefore, the

Court finds that petitioner did not have reasonable cause for his

failure to file as required by section 6651(a)(1) and he is

liable for the additions to tax as respondent determined.

Additions to Tax Under Section 6654

     Respondent also contends that petitioner is liable for the

additions to tax under section 6654 for 1996, and 1997.      Section

6654 provides an addition to tax for failure to make timely and

sufficient payments for estimated taxes.    The section 6654

addition to tax is mandatory unless petitioner can place himself

within one of the computational exceptions provided by section

6654.   Recklitis v. Commissioner, 91 T.C. 874, 913 (1988);

Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980).       Since

petitioner has failed to do so, this Court sustains respondent on

this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                           Decision will be entered

                                      for respondent as to the

                                      deficiencies and the additions

                                      to tax under section

                                      6651(a)(1) for 1995, 1996, and
- 11 -

     1997, and as to the additions

     to tax under section 6654 for

     1996 and 1997, and decision

     will be entered for petitioner

     as to the additions to tax

     under section 6651(a)(2) for

     1996 and 1997 and as to the

     addition to tax under section

     6654 for 1995.
