                 T.C. Summary Opinion 2010-144



                      UNITED STATES TAX COURT



                 MARK PENNINGTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5681-08S.               Filed September 27, 2010.



     Mark Pennington, pro se.

     Sarah Bolen, for respondent.



     WELLS, 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




     1
      All section references are to the Internal Revenue Code
(Code) in effect for the year in issue, and all Rule references
are to the Tax Court Rules of Practice and Procedure, unless
otherwise indicated. All amounts are rounded to the nearest
dollar.
                              - 2 -

decision to be entered is not reviewable by any 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 his 2003 tax year of $32,831, a failure to file

addition to tax pursuant to section 6651(a)(1) of $7,166, a

failure to pay addition to tax pursuant to section 6651(a)(2) of

$6,688, and a failure to pay estimated income tax addition to tax

pursuant to section 6654 of $819.   The parties stipulated

several of the underlying issues.   Both parties agree that

petitioner is liable for a deficiency of $35,877 and that

petitioner is not liable for a failure to pay estimated income

tax addition to tax pursuant to section 6654.2    At trial,

petitioner conceded that he was liable for the failure to pay

addition to tax pursuant to section 6651(a)(2).    Accordingly, the

only issue remaining for decision is whether petitioner is liable

for the failure to file addition to tax pursuant to section

6651(a)(1).

                           Background

     Some of the facts and certain exhibits have been stipulated.

The stipulations of fact are incorporated in this opinion by

reference and are found accordingly.


     2
      Neither party offered an explanation as to the difference
between the amount of the deficiency in the stipulation of facts
and the amount of the deficiency in the notice of deficiency.
                               - 3 -

     At the time the petition was filed, petitioner resided in

Florida.   Petitioner is married to Cynthia Pennington.

     Throughout tax year 2003, petitioner worked as an attorney.

Petitioner moved offices three times and his personal residence

once between 2003 and February 2008.     In the process, petitioner

lost many of his personal records.

     For tax year 2003, petitioner timely filed Form 4868,

Application for Automatic Extension of Time To File U.S.

Individual Income Tax Return with the Internal Revenue Service

(IRS) and included a payment of $983.    Petitioner also filed Form

9465, Installment Agreement Request, with the IRS, stating that

the total tax due was $8,171 and that he made a payment of $5,000

with his tax return.   For the year in issue, respondent has no

record of a Federal income tax return filed by petitioner or of

any payment in excess of the $983 paid with Form 4868.

     Petitioner sent the IRS a check dated April 17, 2006, for

$4,597 for his tax year 2005 estimated Federal income tax

liability.   Respondent has no record of a return filed for tax

year 2005.

     Petitioner failed to file a tax return for tax year 2008.

                            Discussion

     Generally, a return is considered filed with the IRS when

the return is delivered to and received by the IRS.    See United

States v. Lombardo, 241 U.S. 73, 76 (1916); Trout v.
                                - 4 -

Commissioner, 131 T.C. 239, 246 (2008).      However, a return that

is mailed by the taxpayer on or before the filing deadline and

received by the IRS after the filing deadline may be considered

timely filed if:   (1) The postmark date falls on or before the

filing deadline; and (2) the return is deposited in the mail in

the United States in an envelope or wrapper properly addressed to

the appropriate office with postage prepaid.      Sec. 7502(a).

Where a return is sent by registered or certified mail, the

registration or certification is prima facie evidence of delivery

and the date of registration or certification is deemed the

postmark date.   Sec. 7502(c); sec. 301.7502-1(c)(2), Proced. &

Admin. Regs.

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

file a return by the date prescribed (determined with regard to

any extension of time for filing).      The addition to tax is 5

percent of the tax required to be shown on the return if the

failure to file does not exceed 1 month, with an additional 5

percent per month for each month the failure continues, up to a

maximum of 25 percent.3   Id.   However, the failure to file

addition to tax is not imposed if the taxpayer can establish that

such failure is due to reasonable cause and not due to willful



     3
      The sec. 6651(a)(1) addition to tax is reduced by the
amount of the sec. 6651(a)(2) addition for any month (or fraction
thereof) to which an addition to tax applies under sec.
6651(a)(1) and (2). See sec. 6651(c)(1).
                                  - 5 -

neglect.     Id.   To prove reasonable cause, the taxpayer must show

that he exercised ordinary business care and prudence but

nonetheless could not file the return when it was due.      See

Crocker v. Commissioner, 92 T.C. 899, 913 (1989).

       The Commissioner bears the burden of production with respect

to the failure to file addition to tax, pursuant to section

7491(c); however, the taxpayer bears the ultimate burden of

proof.     Higbee v. Commissioner, 116 T.C. 438, 446 (2001).      The

Commissioner need not come forward with evidence regarding

reasonable cause; it is the taxpayer’s burden to raise such a

defense.     Higbee v. Commissioner, supra at 446.

       As proof of petitioner’s failure to file his 2003 Federal

income tax return, respondent offered a Certification of Lack of

Record for petitioner for the year in issue.      Accordingly, we

conclude that respondent has met his burden of production

regarding the applicability of the section 6651(a)(1) addition to

tax.

       Petitioner, a calendar year taxpayer, was required to file a

2003 Federal income tax return by April 15, 2004 (2003 return).

Sec. 6072(a).      However, taxpayers are allowed an automatic 4-

month extension of time to file if they Form 4868 before the date

prescribed for filing the individual income tax return.4       Sec.


       4
      Temporary regulations applicable to applications for
automatic extensions of time to file an individual income tax
                                                   (continued...)
                                - 6 -

6081; sec. 1.6081-4(a), Income Tax Regs.    Petitioner timely filed

Form 4868 extending the time to file a 2003 return until August

15, 2004.5    Consequently, in order to prevail on the section

6651(a)(1) addition to tax, petitioner must prove either that he

timely filed his 2003 return by the extended due date or that he

had reasonable cause for his failure to file his return by the

extended due date.

     By letter dated December 10, 2007, respondent mailed

petitioner a notice of deficiency determining, among other

things, the failure to file addition to tax pursuant to section

6651(a)(1).    Petitioner worked with respondent’s employee Sandra

Lowe to resolve the issues in the notice of deficiency.    Ms. Lowe

advised petitioner to recreate a return for the 2003 tax year.

On October 20, 2008, petitioner faxed Ms. Lowe a Federal income

tax return that he recreated for tax year 2003.    On November 7,

2008, petitioner found a box containing the 2003 return he and

Mrs. Pennington had purportedly filed, which was dated July 4 and




     4
      (...continued)
return filed after Dec. 31, 2005, increase the automatic
extension period from 4 months to 6 months. Sec. 1.6081-4T,
Temporary Income Tax Regs., 70 Fed. Reg. 67359 (Nov. 7, 2005).
These regulations became permanent during 2008, and the permanent
regulations apply to applications for automatic extensions of
time to file individual income tax returns filed after July 1,
2008. See T.D. 9407, 2008-33 I.R.B. 330.
     5
      It is unclear from the record whether petitioner’s Form
4868 was for himself or himself and Mrs. Pennington.
                               - 7 -

9, 2004.   On December 18, 2008, petitioner provided respondent a

copy of the allegedly filed 2003 return.

     Petitioner testified that he always files his returns.

Petitioner contends that he filed a 2003 return on July 9, 2004,

and a 2005 return on August 10, 2006.     However, respondent has no

record of a return filed by petitioner for tax year 2003 or 2005,

and at trial petitioner admitted that he did not file a return

for tax year 2008.6   In the months leading up to trial,

petitioner changed his position regarding the filing of his 2003

return a number of times.7   Accordingly, we give little weight to

petitioner’s testimony that he “always” files his returns.

     Petitioner testified that he mailed a 2003 return from a

post office in the city where he resided.    However, petitioner

did not offer proof of mailing such as proof of certified or

registered mailing.   See sec. 7502(c).   Additionally, petitioner

failed to recall specifically either mailing the 2003 return or,

if he mailed it, from which post office he mailed it.



     6
      The trial of the instant case took place on Nov. 3, 2009.
Petitioner did not contend that he filed for an extension of time
to file the 2008 return. The extension, if timely filed, would
have expired on Oct. 15, 2009. Sec. 1.6081-4(a), Income Tax
Regs.
     7
      In his motion to continue dated Nov. 5, 2008, petitioner
stated that he was “certain that he had filed his tax return for
2003 like every other year. However, it now appears that this
was not the case for the year 2003.” At trial on Nov. 3, 2009,
petitioner testified that he was certain that he had timely filed
his 2003 return.
                               - 8 -

     Petitioner and his wife signed the copy of the 2003 return

provided to respondent on December 18, 2008.    The allegedly filed

return was dated July 4 and 9, 2004.    We note that Ms. Pennington

did not testify at trial.   Moreover, petitioner failed to offer

proof of actual delivery of the 2003 return or reasonable cause

for failure to file his 2003 return.

     Accordingly, on the basis of the record, we hold that

petitioner has failed to meet his burden of proving that he

timely filed a 2003 Federal income tax return and has failed in

his burden of proving reasonable cause for his failure to timely

file his return.   Consequently, we sustain respondent’s

determination of an addition to tax pursuant to section

6651(a)(1).

     The Court has considered all other arguments made by the

parties and, to the extent we have not addressed them herein, we

conclude they are them moot, irrelevant, or without merit.

     To reflect the foregoing and the parties’ concessions,


                                            Decision will be entered

                                       under Rule 155.
