                         T.C. Memo. 2004-250



                       UNITED STATES TAX COURT



                RITA GRANT NDIRIKA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10008-03.            Filed November 3, 2004.



     Rita Grant Ndirika, pro se.

     Roger W. Bracken, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined the following defi-

ciency in, and additions to, petitioner’s Federal income tax

(tax) for her taxable year 2000:
                                    - 2 -

                                            Additions to Tax
 Year       Deficiency   Sec. 6651(a)(1)1   Sec. 6651(a)(2)    Sec. 6654(a)

 2000         $76,851      $10,472.40          $4,421.68        $2,322.15

        In respondent’s answer, respondent conceded the addition to

tax under 6651(a)(2) for petitioner’s taxable year 2000 and

alleged an increase for that year in the addition to tax under

section 6651(a)(1).

        The issues remaining for decision are:

        (1)    Are certain payments that petitioner received from

Gardner, Carton & Douglas (GC&D or firm) during 2000 excludable

under section 104(a)(2) from petitioner’s gross income for that

year?       We hold that they are not.

        (2)    Is petitioner liable for 2000 for the addition to tax

under section 6651(a)(1)?        We hold that she is.

        (3)    Is petitioner liable for 2000 for the addition to tax

under section 6654(a)?       We hold that she is to the extent stated

herein.

                              FINDINGS OF FACT

        Most of the facts have been stipulated and are so found.

        Petitioner resided in Lanham, Maryland, at the time she

filed the petition in this case.

        During the period that began around 1995 and that ended on


        1
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

March 15, 2000, GC&D, a law firm, employed petitioner as an

attorney.    During that period, GC&D made biweekly salary payments

to petitioner.

     Around late January 2000, GC&D advised petitioner that it

intended to discharge her unless she voluntarily resigned from

the firm.    Shortly thereafter, petitioner informed GC&D that she

intended to resign, and petitioner and GC&D began discussing the

terms relating to petitioner’s resignation.

     Around February 2000, GC&D sent petitioner a draft separa-

tion, release, and waiver agreement (separation agreement).      On

or about March 2, 2000, petitioner sent GC&D a memorandum re-

sponding to GC&D’s draft separation agreement.   In that response,

petitioner listed certain matters that she wanted GC&D to take

into consideration in finalizing the separation agreement,

including the following with respect to the consideration that

she was to receive under that agreement:

     I.     Valuable Consideration

            A.   Severance pay for 12 months or 1 year from
                 termination date of March 15, 2000 at $93,750
                 annual rate or

                 Severance pay for * * *[2] months from termi-
                 nation date as of March 15, 2000 at $125,000
                 per year rate retroactive to January 1, 2000.



     2
      The number of months set forth in petitioner’s response to
GC&D’s draft separation agreement that is part of the record in
this case was illegible.
                                  - 4 -

                   Election of lump sum due on or before March
                   30, 2000. Applicable taxes and FICA deduc-
                   tions will be based on current W-4 elections
                   not to exceed total annual deduction amounts
                   reported on 1999 W-2.

     On or about March 15, 2000, petitioner and GC&D executed a

separation agreement that reflected the final terms to which they

had agreed.      The separation agreement provided in pertinent part:

     I.       Valuable Consideration

          In exchange for NDIRIKA’S entering into this
     Agreement, GC&D agrees to provide NDIRIKA with the
     following consideration:

          A.   GC&D will pay NDIRIKA severance pay in the
     form of salary continuation at the annualized rate of
     $93,750, less applicable taxes and FICA for a period of
     twelve (12) months following the Separation Date (i.e.,
     through March 15, 2001) as defined in Section II below
     (the “Severance Period”). Such severance pay will be
     paid, at NDIRIKA’S election, either (i) in equal bi-
     monthly payments during the Severance Period, on dates
     corresponding with GC&D’s regular payroll dates, or
     (ii) in one lump sum payment on the first regular
     payroll date following the Separation Date. Severance
     will be paid regardless of whether NDIRIKA accepts
     other employment during the Severance Period.

          *        *       *        *      *       *       *

          C.   NDIRIKA shall also receive a lump sum supple-
     mental severance payment in the amount of $15,000, less
     applicable taxes and FICA, on the first regular payroll
     date following the Separation Date.


          D.   During the Severance Period, NDIRIKA may
     continue to use her office and telephone in furtherance
     of her job search, and will continue to be allowed
     access to her firm voicemail and e-mail, provided
     NDIRIKA elects to receive her salary continuation
     severance pay under paragraph A above in equal bi-
     monthly payments, rather than in one lump sum payment.
     NDIRIKA will not be required to, nor should she, per-
                           - 5 -

form work on client matters or any other matter on
behalf of GC&D during the Severance Period. If NDIRIKA
elects to receive her salary continuation severance
payment in a lump sum under paragraph A(ii) above, she
will vacate her office by the end of the business day
on the day after the Separation Date and she will be
allowed access to her firm voicemail and e-mail for a
period of 60 days, ending May 15, 2000.

   *        *       *       *       *       *       *

II.    Termination Date

     NDIRIKA hereby voluntarily resigns effective March
15, 2000 (the “Separation Date”).

III. Release and Waiver

     By signing this Agreement, NDIRIKA hereby releases
and waives all legal and equitable claims, rights and
causes of action of any kind whatsoever, known and
unknown, NDIRIKA has or may have against GC&D, includ-
ing, individually and collectively, its partners,
associates, employees, agents, clients, benefit plans
and plan administrators, successors and assigns, as of
the date this Agreement is signed by NDIRIKA. This
includes, but is not limited to, all claims relating to
NDIRIKA’S past relationship with and resignation from
employment with GC&D.

     This release and waiver includes, but is not
limited to:

       A.   any claims for wrongful termination, termina-
            tion in violation of public policy, defama-
            tion, intentional infliction of emotional
            distress and any other common law claims;

       B.   any claims for the breach of any implied,
            written or oral contract, including, but not
            limited to, any contract of employment;

       C.   any claims of discrimination, harassment or
            retaliation based on such things as age,
            marital status, citizenship, national origin,
            race, religion, sex, sexual orientation,
            pregnancy, including pregnancy-related dis-
            ability, or physical or mental disability or
                         - 6 -

          medical condition unrelated to the ability to
          perform;

     D.   any claims for payments of any nature, in-
          cluding but not limited to wages, overtime
          pay, severance pay, vacation pay, commis-
          sions, bonuses and benefits or the monetary
          equivalent of benefits; and

     E.   any claims to reinstatement, rehire or re-
          employment.

     This release and waiver also includes claims,
rights and causes of action that may arise under any
federal, state, local or District of Columbia statutes,
ordinances, rules, regulations and orders, including
but not limited to any claim, right or cause of action
based on the Fair Labor Standards Act, Title VII of the
Civil Rights Act of 1964, the Family and Medical Leave
Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Civil Rights Acts
of 1866, 1871, and 1991, the Employee Retirement Income
Security Act of 1974, the District of Columbia Human
Rights Act, the District of Columbia Family and Medical
Leave Act of 1990, the District of Columbia Parental
Leave Law, the District of Columbia Employment Rights
of Blind and Physically Disabled Persons, the District
of Columbia Wage and Hour Laws, the Illinois Wage
Payment and Collection Act, the Illinois Human Rights
Act, the Cook County Human Rights Ordinance and the
Chicago Human Rights Ordinance, as each of them has
been or may be amended. NDIRIKA agrees not to file any
lawsuit against GC&D or any of the related individuals
or entities listed above in this Section III based on
any claims released or right waived pursuant to this
Agreement. NDIRIKA also agrees to waive her rights to
any claims for attorneys’ fees and recovery or compen-
sation of any kind which she might otherwise receive as
the result of any claim filed by her or on her behalf
against GC&D or any of the entities or individuals
listed above. GC&D will not oppose NDIRIKA’s rights to
unemployment compensation.

     Notwithstanding the foregoing, this release and
waiver does not include any claims which by law may not
be waived (such as claims to workers’ compensation
benefits) and NDIRIKA’s covenant not to sue does not
                              - 7 -

     apply to any lawsuit filed by NDIRIKA to enforce this
     Agreement.

     GC&D timely furnished to petitioner Form W-2, Wage and Tax

Statement (Form W-2), in which it reported that during 2000 it

paid her wages, tips, and other compensation of $126,861.51 and

that it withheld Federal income tax of $16,961.36, State income

tax of $7,316.44, and employment taxes (i.e., Social Security tax

and Medicare tax) totaling $6,580.88.   The amount of wages, tips,

and other compensation reported in Form W-2 that GC&D furnished

to petitioner included the two settlement payments of $93,750 and

$15,000 (settlement payments), or a total of $108,750, that

petitioner received pursuant to the separation agreement.

     After having received Form W-2 from GC&D, petitioner did not

contact the firm to inform it that GC&D had improperly reported

the settlement payments as wages, tips, and other compensation in

that form.

     At a time not disclosed by the record during 2000, peti-

tioner received two early retirement or pension distributions of

$66,731.45 and $21,059.02, respectively, from The Northern Trust

Company (Northern Trust) in its capacity as the fiduciary for the

Gardner, Carton & Douglas Plan.   Northern Trust timely furnished

to petitioner two Forms 1099-R, Distributions From Pensions,

Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance

Contracts, etc. (Forms 1099-R).   Forms 1099-R that Northern Trust

furnished to petitioner showed the following information:
                                   - 8 -
                                           Gross     Taxable  Federal Income
  Payer’s Name         Recipient       Distribution  Amount    Tax Withheld
 Northern Trust   Rita Grant Ndirika    $66,731.45 $66,731.45   $13,346.29

                                           Gross     Taxable  Federal Income
  Payer’s Name         Recipient       Distribution  Amount    Tax Withheld
 Northern Trust   Rita Grant Ndirika    $21,059.02 $21,059.02       $0

     During 2000, petitioner received interest income of $749

from HEW FCU.     HEW FCU timely furnished to petitioner Form 1099-

INT, Interest Income, in which it reported that during 2000 it

paid her interest income of $749.

     During 2000, petitioner paid expenses totaling $39,060,

which qualify as itemized deductions for that year.

     Petitioner did not make any estimated tax payments with

respect to her taxable year 2000.         Nor did she file Form 1040,

U.S. Individual Income Tax Return (tax return), for that year.

Respondent has no record that petitioner filed a tax return for

her taxable year 1999.      Respondent’s records show that for that

year petitioner received wage income of $94,186 and interest

income totaling $22.      Respondent’s records also show that peti-

tioner paid mortgage interest of approximately $23,000 during

that year.3

     Respondent issued to petitioner a notice of deficiency

(notice) for her taxable year 2000.         In that notice, respondent


     3
      Respondent’s records are not part of the record in this
case. A revenue agent who had reviewed respondent’s records with
respect to petitioner’s taxable year 1999 testified that those
records indicated, inter alia, that petitioner paid between
$22,000 and $23,000 of mortgage interest during that year.
                                - 9 -

determined, inter alia, that petitioner is not entitled to

exclude from her gross income any of the payments that she

received during that year from GC&D, Northern Trust, and HEW FCU.

Respondent further determined, inter alia, that petitioner is

liable for additions to tax under sections 6651(a)(1) and (2) and

6654(a), respectively.    As discussed above, in the answer respon-

dent conceded the addition to tax under section 6651(a)(2).

                               OPINION

     Respondent concedes that section 7491 is applicable in the

instant case.    With respect to section 7491(a), respondent

maintains that petitioner has not introduced credible evidence

under section 7491(a)(1) or complied with the applicable require-

ments of section 7491(a)(2).    Therefore, according to respondent,

the burden of proof with respect to respondent’s deficiency

determination for petitioner’s taxable year 2000 does not shift

to respondent.    On the record before us, we find that petitioner

has failed to carry her burden of establishing that she has

complied with the applicable requirements of section 7491(a)(2).

On that record, we further find that petitioner has not intro-

duced credible evidence with respect to any factual issue rele-

vant to the Court’s determining whether to sustain respondent’s

deficiency determination at issue.      On the record before us, we

conclude that petitioner has the burden of proving that that

determination is wrong.    See Rule 142(a); Welch v. Helvering, 290
                              - 10 -

U.S. 111, 115 (1933).

Payments at Issue

     It is petitioner’s position that approximately $100,000

(payments at issue) of the payments that she received pursuant to

the separation agreement was on account of personal physical

injuries or physical sickness and therefore should be excluded

from her gross income under section 104(a)(2).4   It is respon-

dent’s position that petitioner is not entitled to exclude from

her gross income under section 104(a)(2) the payments at issue,

or any other payments, that she received during 2000.

     Section 61(a) provides the following sweeping definition of

the term “gross income”:   “Except as otherwise provided in this

subtitle, gross income means all income from whatever source

derived”.   The regulations promulgated thereunder specifically

provide that compensation for services, such as termination or

severance pay, is included within the definition of gross income.

See sec. 61(a)(1); sec. 1.61-2(a)(1), Income Tax Regs.   Not only

is section 61(a) broad in its scope, Commissioner v. Schleier,

515 U.S. 323, 328 (1995), exclusions from gross income must be

narrowly construed, id.; United States v. Burke, 504 U.S. 229,

248 (1992).

     Section 104(a)(2), on which petitioner relies, provides that



     4
      The Court ordered the parties to file posttrial briefs.
Petitioner failed to do so.
                                - 11 -

gross income does not include:

           (2) the amount of any   damages (other than punitive
     damages) received (whether    by suit or agreement and
     whether as lump sums or as    periodic payments) on ac-
     count of personal physical    injuries or physical sick-
     ness;

     The regulations under section 104(a)(2) provide in pertinent

part:

     The term “damages received (whether by suit or agree-
     ment)” means an amount received (other than workmen’s
     compensation) through prosecution of a legal suit or
     action based upon tort or tort type rights, or through
     a settlement agreement entered into in lieu of such
     prosecution.

Sec. 1.104-1(c), Income Tax Regs.

     The Supreme Court summarized the requirements of section

104(a)(2) as follows:

          In sum, the plain language of § 104(a)(2), the
     text of the applicable regulation, and our decision in
     Burke establish two independent requirements that a
     taxpayer must meet before a recovery may be excluded
     under § 104(a)(2). First, the taxpayer must demon-
     strate that the underlying cause of action giving rise
     to the recovery is “based upon tort or tort type
     rights”; and second, the taxpayer must show that the
     damages were received “on account of personal injuries
     or sickness.” * * *

Commissioner v. Schleier, supra at 336-337.

        When the Supreme Court issued its opinion in Commissioner v.

Schleier, supra, section 104(a)(2), as in effect for the year at

issue in Schleier, required, inter alia, that, in order to be

excluded from gross income, an amount of damages had to be

received “on account of personal injuries or sickness.”     After
                              - 12 -

the Supreme Court issued its opinion in Schleier, Congress

amended (1996 amendment) section 104(a)(2), effective for amounts

received after August 20, 1996, by adding the requirement that,

in order to be excluded from gross income, any amounts received

must be on account of personal injuries that are physical or

sickness that is physical.5   Small Business Job Protection Act of

1996, Pub. L. 104-188, sec. 1605, 110 Stat. 1755, 1838-1839.     The

1996 amendment does not otherwise change the requirements of

section 104(a)(2) or the analysis set forth in Commissioner v.

Schleier, supra; it imposes an additional requirement for an

amount to qualify as an exclusion from gross income under that

section.

     Where damages are received pursuant to a settlement agree-

ment, such as is the case here, the nature of the claim that was

the actual basis for settlement controls whether such damages are

excludable under section 104(a)(2).    United States v. Burke,

supra at 237.   The determination of the nature of the claim is

factual.   Robinson v. Commissioner, 102 T.C. 116, 126 (1994),

affd. in part, revd. in part, and remanded on another issue 70


     5
      Sec. 104(a) provides that emotional distress is not to be
treated as a physical injury or physical sickness for purposes of
sec. 104(a)(2), except for damages not in excess of the amount
paid for medical care attributable to emotional distress. In
this connection, the legislative history of the 1996 amendment
states: “It is intended that the term emotional distress in-
cludes symptoms (e.g., insomnia, headaches, stomach disorders)
which may result from such emotional distress.” H. Conf. Rept.
104-737, at 301 n.56 (1996), 1996-3 C.B. 741, 1041 n.56.
                              - 13 -

F.3d 34 (5th Cir. 1995); Seay v. Commissioner, 58 T.C. 32, 37

(1972).   Where there is a settlement agreement, that determina-

tion is usually made by reference to it.    See Knuckles v. Commis-

sioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo.

1964-33; Robinson v. Commissioner, supra.    If the settlement

agreement lacks express language stating what the settlement

amount was paid to settle, the intent of the payor is critical to

that determination.   Knuckles v. Commissioner, supra; see also

Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), affg. per

curiam T.C. Memo. 1960-21.   Although the belief of the payee is

relevant to that inquiry, the character of the settlement payment

hinges ultimately on the dominant reason of the payor in making

the payment.   Agar v. Commissioner, supra; Fono v. Commissioner,

79 T.C. 680, 696 (1982), affd. without published opinion 749 F.2d

37 (9th Cir. 1984).   Whether the settlement payment is excludable

from gross income under section 104(a)(2) depends on the nature

and character of the claim asserted, and not upon the validity of

the claim.   See Bent v. Commissioner, 87 T.C. 236, 244 (1986),

affd. 835 F.2d 67 (3d Cir. 1987); Glynn v. Commissioner, 76 T.C.

116, 119 (1981), affd. without published opinion 676 F.2d 682

(1st Cir. 1982); Seay v. Commissioner, supra.

     In support of petitioner’s position that the payments at

issue are excludable from her gross income under section

104(a)(2), petitioner testified that she had “informed the
                              - 14 -

management [of GC&D] that I felt that I had a claim related to

not only my current pregnancy, but also the fact that I had lost

a child in October 1998 * * * and that I intended to pursue that

claim when I left.”   Petitioner further testified that “To

release my pregnancy related claim, I said to the firm, you know,

that I wanted a settlement amount equal to a year’s salary”.   We

found petitioner’s testimony to be vague, self-serving, uncorrob-

orated, inconsistent with the terms of the separation agreement,

and not credible.6

     As made clear by the following provisions of the separation

agreement, the settlement payments received thereunder were

salary continuation severance payments.7

     I.   Valuable Consideration

          In exchange for NDIRIKA’S entering into this
     Agreement, GC&D agrees to provide NDIRIKA with the
     following consideration:



     6
      At the call of this case from the calendar, petitioner
informed the Court that she intended to call as a witness an
individual who during 2000 had been the managing partner (part-
ner) of GC&D and who would corroborate her claim that the pay-
ments at issue were received on account of personal physical
injuries or physical sickness. At the call of this case for
trial, petitioner informed the Court that the partner whom she
intended to call “has come down with a case of amnesia”. We
infer from petitioner’s failure to call that partner that his
testimony would not have been favorable to petitioner’s position.
See Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158,
1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
     7
      The separation agreement contains a release and waiver
provision that appears to contain boilerplate language, and we do
not attribute any significance to that provision.
                             - 15 -

          A.   GC&D will pay NDIRIKA severance pay in the
     form of salary continuation at the annualized rate of
     $93,750, less applicable taxes and FICA for a period of
     twelve (12) months following the Separation Date (i.e.,
     through March 15, 2001) as defined in Section II below
     (the “Severance Period”). Such severance pay will be
     paid, at NDIRIKA’S election, either (i) in equal bi-
     monthly payments during the Severance Period, on dates
     corresponding with GC&D’s regular payroll dates, or
     (ii) in one lump sum payment on the first regular
     payroll date following the Separation Date. Severance
     will be paid regardless of whether NDIRIKA accepts
     other employment during the Severance Period.

        *       *       *       *       *        *       *

          C.   NDIRIKA shall also receive a lump sum supple-
     mental severance payment in the amount of $15,000, less
     applicable taxes and FICA, on the first regular payroll
     date following the Separation Date.

          D.   During the Severance Period, NDIRIKA may
     continue to use her office and telephone in furtherance
     of her job search, and will continue to be allowed
     access to her firm voicemail and e-mail, provided
     NDIRIKA elects to receive her salary continuation
     severance pay under paragraph A above in equal bi-
     monthly payments, rather than in one lump sum payment.
     NDIRIKA will not be required to, nor should she, per-
     form work on client matters or any other matter on
     behalf of GC&D during the Severance Period. If NDIRIKA
     elects to receive her salary continuation severance
     payment in a lump sum under paragraph A(ii) above, she
     will vacate her office by the end of the business day
     on the day after the Separation Date and she will be
     allowed access to her firm voicemail and e-mail for a
     period of 60 days, ending May 15, 2000.

     Petitioner did not introduce any reliable evidence that

persuades us that the separation agreement, which treats the

payments at issue as salary continuation severance payments,

incorrectly characterized such payments.    Petitioner had the

opportunity to challenge the characterization of the settlement
                               - 16 -

payments as salary continuation severance payments when (1) she

responded to GC&D’s draft separation agreement, (2) signed the

separation agreement, and (3) received Form W-2 from GC&D in

which the firm reported such payments as wages, tips, and other

compensation.   She did not.

     Based upon our examination of the entire record before us,

we find that the salary continuation severance payments that GC&D

made to petitioner pursuant to the separation agreement are gross

income.   See sec. 61(a)(1); sec. 1.61-2(a)(1), Income Tax Regs.

On that record, we further find that petitioner has failed to

carry her burden of establishing that the nature of the claim

that was the actual basis for the payments made pursuant to the

separation agreement was certain personal physical injuries or

physical sickness that she suffered while working for GC&D

relating to (1) a miscarriage that she may have had, (2) a

pregnancy that she may have had when she left the firm, or

(3) another cause.   On the record before us, we find that peti-

tioner has failed to carry her burden of establishing that she

received the payments at issue on account of personal physical

injuries or physical sickness.   On that record, we further find

that petitioner has failed to carry her burden of establishing

that she is entitled under section 104(a)(2) to exclude the

payments at issue from her gross income.
                                - 17 -

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

     Respondent determined that petitioner is liable for the

addition to tax under section 6651(a)(1).    Section 6651(a)(1)

imposes an addition to tax for failure to file a tax return on

the date prescribed for filing, unless petitioner proves that

such failure to file was due to reasonable cause and not willful

neglect.   Sec. 6651(a)(1); Higbee v. Commissioner, 116 T.C. 438,

447 (2001).

     Respondent must carry the burden of production with respect

to the addition to tax under section 6651(a)(1).    Sec. 7491(c);

Higbee v. Commissioner, supra at 446-447.    To satisfy respon-

dent’s burden of production, respondent must come forward with

“sufficient evidence indicating that it is appropriate to impose”

the addition to tax.     Higbee v. Commissioner, supra at 446.

     Although at trial petitioner appeared to concede the addi-

tion to tax under section 6651(a)(1), it is not altogether clear

to the Court that she in fact conceded that addition to tax.

Consequently, we shall address whether petitioner is liable for

the addition to tax under section 6651(a)(1) for her taxable year

2000.

     We have found that petitioner did not file a tax return for

her taxable year 2000.    On the record before us, we find that

respondent has satisfied respondent’s burden of production under

section 7491(c) with respect to the addition to tax under section
                              - 18 -

6651(a)(1).   On that record, we further find that petitioner has

failed to carry her burden of showing that her failure to file a

tax return for 2000 was due to reasonable cause, and not due to

willful neglect.

     Respondent conceded in the answer the addition to tax under

section 6651(a)(2) determined in the notice.   As a result,

according to respondent, section 6651(c)(1) does not apply.    We

agree with respondent.   On the record before us, we find that

respondent has established that the amount of the addition to tax

under section 6651(a)(1) that respondent determined in the notice

should be increased.8

Addition to Tax Under Section 6654(a)

     Respondent determined that petitioner is liable for the

addition to tax under section 6654(a).   Section 6654(a) imposes

an addition to tax in the case of an underpayment of estimated

tax by an individual.9



     8
      The increase in the addition to tax under 6651(a)(1) that
we have sustained will be determined by the parties under Rule
155.
     9
      For purposes of sec. 6654(a), it is necessary to determine
whether there is an underpayment of a required installment of
estimated tax. See sec. 6654(a) and (b). In this connection,
the amount of any required installment is 25 percent of the
required annual payment. Sec. 6654(d)(1)(A). The required
annual payment is equal to the lesser of (1) 90 percent of the
tax shown in the tax return for the taxable year or, if no tax
return was filed, 90 percent of the tax for such year, or (2) if
the individual filed a tax return for the preceding taxable year,
100 percent of the tax shown in such return. Sec. 6654(d)(1)(B).
                               - 19 -

     Respondent has the burden of production with respect to the

addition to tax under section 6654(a).   Sec. 7491(c); Higbee v.

Commissioner, supra at 446-447.   We have found that petitioner

did not file a tax return for her taxable year 2000 and that

respondent has no record that petitioner filed a tax return for

her taxable year 1999.   Petitioner introduced no reliable evi-

dence establishing that she filed a tax return for either of

those years.   We have also found that petitioner did not make any

estimated tax payments with respect to her taxable year 2000,

although the amounts of tax withheld during that year are treated

under section 6654(g)(1) as estimated tax payments.

     We find that the record contains evidence from which the

parties, in the computations under Rule 155, will be able to

calculate the amount of any required installment by petitioner

within the meaning of section 6654(d)(1) with respect to her

taxable year 2000 and the amount, if any, of an underpayment of

estimated tax for that year.   In the event that such calculation

were to establish that petitioner underpaid her estimated tax for

her taxable year 2000, we find that respondent has satisfied

respondent’s burden of production with respect to the addition to

tax under section 6654(a) for that year.   In that event, we

further find on the instant record (1) that none of the excep-

tions in section 6654(e) applies and (2) that petitioner is

liable for the addition to tax under section 6654(a) for her
                             - 20 -

taxable year 2000.

     In the event that the calculation relating to section 6654

were to establish that petitioner did not underpay her estimated

tax for her taxable year 2000, we find that respondent has not

satisfied respondent’s burden of production with respect to the

addition to tax under section 6654(a) for that year and that

petitioner is not liable for such addition to tax.

     We have considered all of the contentions and arguments of

petitioner that are not discussed herein, and we find them to be

irrelevant and/or without merit.

     To reflect the foregoing and the concessions of the parties,


                                   Decision will be entered

                              under Rule 155.
