                               T.C. Memo. 2014-24



                         UNITED STATES TAX COURT



                   VIRGINIA W. KELLY, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 28949-12.                           Filed January 30, 2014.



      Virginia W. Kelly, pro se.

      Christopher R. Moran, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      LAUBER, Judge: With respect to petitioner’s Federal income tax for 2009,

the Internal Revenue Service (IRS or respondent) determined a deficiency of

$2,470 and a section 6651(a)(1) addition to tax of $617.1 Before trial the parties


      1
        All statutory 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
                                                                       (continued...)
                                          -2-

[*2] stipulated the adjustments giving rise to the deficiency. The sole issue for

decision is whether petitioner is liable for the addition to tax for late filing of her

2009 return.

                                FINDINGS OF FACT

      The parties filed a stipulation of facts and related exhibits that are incorpor-

ated by this reference. Petitioner resided in Maryland when she filed the petition.

On April 15, 2010, petitioner timely filed Form 4868, Application for Automatic

Extension of Time To File U.S. Individual Income Tax Return. By submitting this

application, petitioner received an extension of time until October 15, 2010, to file

her return for 2009.

      Petitioner was married during 2009 but elected to file separately. She pre-

pared her 2009 return using TurboTax. The TurboTax cover sheet instructed her

to mail her 2009 return to the IRS office in Kansas City, Missouri. According to

the IRS transcript of petitioner’s 2009 account, included in the stipulation of facts,

the IRS did not receive petitioner’s 2009 return until March 12, 2012.

      At trial petitioner acknowledged that she had filed her 2007 and 2010

individual income tax returns late. During 2010-11 petitioner was corresponding


      1
      (...continued)
Procedure. All monetary amounts are rounded to the nearest dollar.
                                          -3-

[*3] with IRS offices in various cities--including Philadelphia, Cincinnati, and

Kansas City, Missouri--with respect to her tax liabilities. She was making

periodic payments on account of multiple tax years. She acknowledged that some

of these payments may have required mailing to the IRS Philadelphia office.

        Petitioner testified that she filed her 2009 return on or before the October

15, 2010, due date. The only evidence she submitted of this filing was a U.S.

Postal Service receipt showing that an unspecified document was delivered to the

Department of the Treasury in Philadelphia, Pennsylvania. The delivery date

stamped on this receipt, which was not entirely legible, appeared to be March 13,

2010.

        Petitioner stated that she might be able to produce additional evidence of

timely mailing if she had the opportunity to review a box of documents that had

been packed for a household move. At the close of trial, the Court left the record

open for 30 days to afford petitioner time to review her files and provide, to

counsel for respondent and the Court, any additional evidence concerning the date

on which her 2009 return was mailed. No additional evidence was submitted

before the record closed.
                                         -4-

[*4]                                  OPINION

       Section 6651(a)(1) provides for an addition to tax when a taxpayer fails to

file a return timely unless the taxpayer proves that the failure was due to reason-

able cause and not due to willful neglect. For each month or fraction thereof for

which such failure continues, section 6651(a)(1) adds 5% of the tax required to be

shown on such return, up to a maximum addition of 25%. Respondent bears the

burden of production for the late-filing addition to tax. See sec. 7491(c). Once

respondent meets his burden of production, the burden shifts to petitioner to per-

suade the Court that the respondent’s determination is incorrect. See Rule 142(a);

Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).

       The due date for petitioner’s 2009 return, as extended, was October 15,

2010. The IRS transcript of her account shows that this return was not filed until

March 12, 2012. Respondent has therefore carried his burden of producing

evidence that petitioner’s 2009 return was filed late. See Wheeler v.

Commissioner, 127 T.C. 200, 207-208 (2006), aff’d, 521 F.3d 1289 (10th Cir.

2008); Mills v. Commissioner, T.C. Memo. 2007-270, 94 T.C.M. (CCH) 274, 275

(2007).

       Petitioner argues that no addition to tax is appropriate because she filed her

return timely pursuant to the “timely mailed, timely filed” rule of section 7502(a).
                                        -5-

[*5] Petitioner produced no credible evidence, however, that she mailed her 2009

return on or before its due date. The only evidence she produced was a U.S. Postal

Service receipt showing that an unspecified document was delivered to the

Department of the Treasury in Philadelphia, Pennsylvania, apparently on March

13, 2010. There is no evidence that the document so mailed was her 2009 tax

return, and the record supports an inference to the contrary. First, the TurboTax

cover sheet instructed petitioner to mail her 2009 return, not to the IRS

Philadelphia office, but to the IRS Kansas City office. Second, petitioner

requested, on April 15, 2010, an extension of time to file her 2009 return. It is

implausible that she would have requested this extension if she had filed her 2009

return one month previously. Petitioner acknowledged that she was corresponding

with the IRS Philadelphia office on other matters. Our review of the record

convinces us that the document she claims to have mailed to the IRS Philadelphia

office on March 13, 2010, was something other than her 2009 individual income

tax return.

      Finding no evidence that petitioner filed her 2009 return before the October

15, 2010, due date, and finding no evidence that her failure to file timely was due
                                       -6-

[*6] to reasonable cause, we sustain the addition to tax that respondent determined

under section 6651(a)(1). To reflect the foregoing,



                                             Decision will be entered for

                                      respondent.
