                  T.C. Summary Opinion 2007-22



                     UNITED STATES TAX COURT



          CHRISTOPHER CLIFFORD ROILAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4692-06S.            Filed February 14, 2007.


     Christopher Clifford Roiland, pro se.

     Jeffrey S. Luechtefeld, for respondent.



     PANUTHOS, Chief 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.   The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.   Unless otherwise

indicated, 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.
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     Respondent determined a $2,184 deficiency in petitioner’s

2002 Federal income tax.    Respondent also determined additions to

tax of $491.40 and $327.60 under section 6651(a)(1) and (2),

respectively.    After concessions,1 the issues for decision are:

(1) Whether petitioner received $12,613 of wage income, and (2)

whether petitioner is liable for an addition to tax under section

6651(a)(1).

                             Background

     Petitioner resided in Seminole, Florida, when the petition

was filed.

     In 2002, petitioner worked for the Steel Detailers, Inc.

(the company).    The record does not indicate the precise nature

of petitioner’s duties for the company although petitioner

indicated that he worked with computers.    Petitioner earned

$12,613 in 2002 but did not file a Federal income tax return for

that year.

     Respondent issued petitioner a notice of deficiency in

November 2005.    Respondent determined that petitioner had

unreported income of $12,613.    Respondent also determined an

addition to tax under section 6651(a)(1) based on petitioner’s

failure to file a return.


     1
       Respondent concedes that petitioner was an employee for
Federal income tax purposes in 2002 and, therefore, was not
subject to self-employment tax. Respondent also concedes the
addition to tax under sec. 6651(a)(2).
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                            Discussion

     In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing the determinations are in error.      Rule

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

to section 7491, the burden of proof as to factual matters shifts

to the Commissioner under certain circumstances.    Because the

facts are not in dispute, we decide this case without regard to

the burden of proof.

1.   Unreported Income

     Section 61(a) provides that gross income means all income

from whatever source derived.   At trial, petitioner acknowledged

that he had received $12,613 of wage income from the company in

2002.   Accordingly, respondent’s determination on this issue is

sustained.

2.   Addition to Tax Under Section 6651(a)(1)

     If a tax return is not timely filed, an addition to tax will

be assessed “unless it is shown that such failure is due to

reasonable cause and not due to willful neglect”.    Sec.

6651(a)(1).   The Commissioner has the burden of production with

respect to the liability of any individual for an addition to tax

under section 6651(a)(1).   Sec. 7491(c).   The burden of showing

reasonable cause under section 6651(a) remains on the taxpayer.

Higbee v. Commissioner, 116 T.C. 438, 446-448 (2001).
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     At trial, petitioner acknowledged that he had failed to file

his 2002 tax return.    Accordingly, respondent has met his burden

of production.

     Petitioner contends that he had reasonable cause for his

failure to file.    Petitioner’s testimony on this point was

somewhat unclear, but he appears to argue that he received a Form

1099-MISC, Miscellaneous Income, which is generally used to

report income paid to independent contractors, instead of a Form

W-2, Wage and Tax Statement, which is used to report income paid

to employees.    Petitioner contends that because he was an

employee rather than an independent contractor, he could not file

a tax return unless he received a Form W-2.    We disagree.

     Unavailability of information does not constitute reasonable

cause for failing to file a return.     Crocker v. Commissioner, 92

T.C. 899, 913 (1989).    A taxpayer is required to file timely

using the best information available and to file thereafter an

amended return if necessary.    Estate of Vriniotis v.

Commissioner, 79 T.C. 298, 311 (1982).     Petitioner does not

dispute that the Form 1099-MISC he received accurately reported

the amount of income he received from the company.    Even if this

information was inaccurate or reported on the wrong form,

petitioner was required to file a return and, if necessary, file

an amended return thereafter.    See id.   Accordingly, petitioner
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has not demonstrated reasonable cause.       Respondent’s

determination on this issue is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                         Decision will be entered

                                 under Rule 155.
