                  T.C. Summary Opinion 2009-179



                     UNITED STATES TAX COURT



                SALLY KIRSHENBAUM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13022-08S.               Filed December 1, 2009.



     Sally Kirshenbaum, pro se.

     Louise R. Forbes, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
                               - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency in petitioner’s Federal

income tax for 2002 of $13,124, as well as an addition to tax

under section 6651(a)(1) of $2,229.97, an addition to tax under

section 6651(a)(2) of $2,477.75, and an addition to tax under

section 6654 of $319.24.

     Respondent conceded the addition to tax under section 6654;

thus, the issues for decision are:

     (1) Whether petitioner may file a joint tax return with her

husband;

     (2) whether petitioner is entitled to two dependency

exemption deductions;

     (3) whether petitioner is liable for the addition to tax for

failure to timely file under section 6651(a)(1); and

     (4) whether petitioner is liable for the addition to tax for

failure to pay under section 6651(a)(2).

                            Background

     All of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioner resided in the State of Rhode Island when the

petition was filed.   At all relevant times, petitioner has been

married and has resided with her spouse.
                                - 3 -

     For 2002, the taxable year in issue, petitioner did not file

a request for an extension of time for filing a return, see sec.

6081(a), nor did petitioner timely file a return, see sec.

6072(a).

     For 2002 petitioner’s husband filed a Form 1040, U.S.

Individual Income Tax Return, with the filing status of single on

August 9, 2004.   Petitioner’s husband claimed the standard

deduction and a personal exemption on that return.   Petitioner

had no knowledge of that return.

     On November 19, 2007, respondent prepared a substitute for

return under section 6020(b).   Thereafter, on February 25, 2008,

respondent sent petitioner a notice of deficiency.   Respondent’s

deficiency determination was principally attributable to

petitioner’s failure to report wages and interest of $70,991.

Respondent allowed petitioner a personal exemption for herself

and the standard deduction and accorded her the filing status of

single.

     After receiving the notice of deficiency for 2002,

petitioner, on April 7, 2008, submitted to respondent a Form 1040

claiming the filing status of married filing jointly.   Petitioner

claimed itemized deductions and dependency exemption deductions

for her daughter and father on this return. Respondent did not

accept this return because it was a joint return.
                                - 4 -

      On May 28, 2008, petitioner timely filed a petition with the

Court for redetermination of the deficiency.     In the petition,

petitioner stated that her husband handled the family finances

and had fallen ill in 2002.    Petitioner stated she was willing to

pay the tax due, but prayed for relief from the additions to tax.

                              Discussion

A.   Burden of Proof

      We begin by noting that the submission of a case fully

stipulated does not alter the burden of proof, the requirements

otherwise applicable with respect to adducing proof, or the

effect of failure of proof.    Rule 122(b).

      As a general rule, the Commissioner’s determinations are

presumed correct, and the taxpayer bears the burden of proving

that those determinations are erroneous.      Rule 142(a); INDOPCO,

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering,

290 U.S. 111, 115 (1933).   Under section 7491(a)(1), the burden

of proof may shift from the taxpayer to the Commissioner if the

taxpayer produces credible evidence with respect to any factual

issue relevant to ascertaining the taxpayer’s liability.

Petitioner has not alleged that section 7491 applies, nor did she

introduce the requisite evidence to invoke that section;

therefore, the burden of proof remains on petitioner.

     Section 7491(c) provides that the Commissioner bears the

burden of production with respect to an addition to tax.     To meet
                                 - 5 -

this burden, the Commissioner must introduce evidence indicating

that it is appropriate to impose the relevant addition to tax.

Higbee v. Commissioner, 116 T.C. 438, 446 (2001).     Once the

Commissioner meets this burden, the taxpayer bears the burden to

produce evidence regarding reasonable cause.     Id. at 446-447.

Respondent has met his burden.    E.g., Cabirac v. Commissioner,

120 T.C. 163, 170-173 (2003).

      Further, deductions and credits are a matter of legislative

grace, and the taxpayer bears the burden of proving that he or

she is entitled to any deduction or credit claimed.     Rule 142(a);

Deputy v. du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co.

v. Helvering, 292 U.S. 435, 440 (1934).

B.   Joint Tax Return

      In general, section 6013(a) entitles married taxpayers to

make a joint income tax return.    Section 6013(b)(1) further

provides as a general rule that even where a taxpayer has filed a

separate return for a taxable year and the time prescribed for

filing has expired, the taxpayer may nevertheless make a joint

return with his or her spouse for such taxable year.

      However, the election under section 6013(b)(1) may not be

made after the expiration of 3 years from the last date

prescribed by law for filing the return for such taxable year

(determined without regard to any extension of time granted to

either spouse).   Sec. 6013(b)(2)(A).    Section 6072(a) provides
                                 - 6 -

that individual income tax returns for calendar year taxpayers

must be filed on or before April 15 following the close of the

calendar year.    Thus, a 2002 tax return is timely filed on or

before April 15, 2003.    To fall within section 6013(b)(2)(A),

petitioner had to file a joint return on or before April 15,

2006.     Petitioner did not submit a joint tax return to respondent

until April 7, 2008, nearly 2 years after the time prescribed by

section 6013(b)(2)(A).

      In addition, no election under section 6013(a)(1) may be

made “after there has been mailed to either spouse, with respect

to such taxable year, a notice of deficiency under section 6212,

if the spouse, as to such notice, files a petition with the Tax

Court within the time prescribed by section 6213”.    Sec.

6013(b)(2)(B).    The notice of deficiency was mailed to petitioner

on February 25, 2008, before the submission of the April 7, 2008

joint return, and a petition with the Tax Court was timely filed

on May 28, 2008.

      Therefore, petitioner is precluded from filing a joint

return for 2002.2

C.   Dependency Exemption Deductions

      Petitioner claims she is entitled to two dependency

exemption deductions, one each for her daughter and father.


      2
        Although he could have, respondent chose not to seek an
increased deficiency by applying the tax rates applicable to
married individuals filing separately.
                                - 7 -

     As pertinent here, a taxpayer is entitled to a dependency

exemption deduction for each dependent (as defined in section

152) whose gross income for the taxable year is less than the

exemption amount.   Sec. 151(c)(1)(A).   The exemption amount for

2002 was $3,000.    Sec. 151(d)(1), (4); Rev. Proc. 2001-59, sec.

3.11, 2001-2 C.B. 623, 626.   Section 152(a) provides that the

term “dependent” means an individual over half of whose support

for the year was received from the taxpayer.    “Dependent” may

include a taxpayer’s child or parent.    Sec. 152(a)(1), (4).

     In order to prove that a taxpayer provided more than half

the support of her dependents, she must establish the entire

amount expended for their support from all sources.    Archer v.

Commissioner, 73 T.C. 963, 967 (1980); Blanco v. Commissioner, 56

T.C. 512, 514-515 (1971).   In addition, the taxpayer must

demonstrate that the dependents’ gross income did not exceed the

exemption amount.   Sec. 151(c)(1)(A), (d)(1), (4).

     The record is devoid of any evidence regarding the total

amount spent for the support of petitioner’s father and daughter

(by petitioner and from other sources) or the gross income of

petitioner’s father and daughter for 2002.    Although we do not

doubt that petitioner may have contributed to the support of her

father and daughter, petitioner failed to show the extent of such

support and the gross income, if any, of her father and daughter.

On the basis of the record, we decline to accept petitioner’s
                                 - 8 -

unsupported assertion that she is entitled to the dependency

exemption deductions claimed.    See Tokarski v. Commissioner, 87

T.C. 74, 77 (1986).

       Accordingly, petitioner is not entitled to a dependency

exemption deduction for her father or daughter for 2002.

D.   Section 6651(a)(1) Addition to Tax

       Section 6651(a)(1) imposes an addition to tax for failure to

file a return by its due date.    The addition equals 5 percent for

each month or fraction thereof that the return is late, not to

exceed 25 percent.    Sec. 6651(a)(1).   Under section 6651(g)(1), a

return prepared by the Secretary under section 6020(b) is

disregarded for purposes of the section 6651(a)(1) addition to

tax.

       In the absence of an extension, the last date for petitioner

to have filed her Federal income tax return for taxable year 2002

was Tuesday, April 15, 2003.    Sec. 6072(a).   Petitioner’s 2002

Form 1040 was not submitted, however, until April 7, 2008.

       “A failure to file a tax return on the date prescribed leads

to a mandatory penalty unless the taxpayer shows that such

failure was due to reasonable cause and not due to willful

neglect.”    McMahan v. Commissioner, 114 F.3d 366, 368 (2d Cir.

1997), affg. T.C. Memo. 1995-547.    A showing of reasonable cause

requires a taxpayer to show that she exercised “ordinary business

care and prudence” but was nevertheless unable to file the return
                                - 9 -

within the prescribed time.    United States v. Boyle, 469 U.S.

241, 246 (1985); sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

     A taxpayer may have reasonable cause for failure to timely

file a return where the taxpayer or a member of the taxpayer’s

family experiences an illness or incapacity that prevents the

taxpayer from filing his or her return.    See, e.g., United States

v. Sanford, 979 F.2d 1511 (11th Cir. 1992) (holding that

reasonable cause may be found if a taxpayer convincingly

demonstrates that a disability beyond his control rendered him

unable to exercise ordinary business care).    The type of

disability required is “one that because of severity or timing

makes it virtually impossible for the taxpayer to comply--things

like emergency hospitalization or other incapacity occurring

around tax time.”    Carlson v. United States, 126 F.3d 915, 923

(7th Cir. 1997).

     Although we recognize that petitioner’s husband may have

been ill during 2002, petitioner did not explain how this illness

prevented her from exercising ordinary business care and

prudence.

     On the basis of the record before us, we therefore conclude

that petitioner did not demonstrate that her failure to timely

file a tax return was due to reasonable cause and not willful

neglect.    See sec. 301.6651-1(c), Proced. & Admin. Regs.
                              - 10 -

      Thus, petitioner is liable for the addition to tax under

section 6651(a)(1).

E.   Section 6651(a)(2) Addition to Tax

      Section 6651(a)(2) imposes an addition to tax for failure to

pay the amount shown as tax on the return on or before the date

prescribed for payment of that tax, unless the failure was due to

reasonable cause and not willful neglect.   Sec. 301.6651-1(c)(1),

Proced. & Admin. Regs.   Under section 6651(g)(2), a return

prepared by the Secretary under section 6020(b) is treated as

“the return filed by the taxpayer for purposes of determining the

amount of the addition” under section 6651(a)(2).   A taxpayer may

demonstrate cause for late payment by showing that she exercised

ordinary business care and prudence in providing for payment of

her tax liability and was nevertheless either unable to pay the

tax or would suffer an undue hardship if she paid on the due

date.   Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

      Petitioner did not, however, argue any set of facts or

circumstances that would lead the Court to find that she

exercised ordinary business care and prudence in providing for

timely payment of her tax liability or that she would have

suffered undue hardship if she had paid the tax in full on its

due date, April 15, 2003.   See secs. 6072(a), 6151(a); sec.

301.6651-1(c), Proced. & Admin. Regs.
                             - 11 -

     Consequently, petitioner is liable for an addition to tax

under section 6651(a)(2).

     To reflect the foregoing,


                                        Decision will be entered

                                   for respondent as to the

                                   deficiency and the additions

                                   to tax under section

                                   6651(a)(1) and (2), and for

                                   petitioner as to the addition

                                   to tax under section 6654.
