                       T.C. Memo. 2003-186



                     UNITED STATES TAX COURT



              RAYMOND E. CRITTENDEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11199-01.               Filed June 26, 2003.


     Raymond E. Crittenden, pro se.

     John F. Driscoll, for respondent.



                       MEMORANDUM OPINION


     POWELL, Special Trial Judge:     Respondent determined a

deficiency of $10,802 and an addition to tax of $2,681.50 under

section 6651(a)(1)1 in petitioner’s 1995 Federal income tax.

After concessions, the issue is whether petitioner is liable for



     1
         Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the year in issue.
                               - 2 -

the addition to tax under section 6651(a)(1) for failure to

timely file a Federal income tax return.   Petitioner resided in

Tuscaloosa, Alabama, at the time the petition was filed.

                            Background

     On April 15, 1996, petitioner timely filed an extension of

time to file his 1995 Federal income tax return and remitted a

payment of $4,700.   Petitioner, however, did not file his return

on or before the expiration of the extended time.   On February 3,

2000, respondent issued a so-called 30-day letter to petitioner.

Petitioner did not directly respond to the 30-day letter.

Instead, petitioner filed his 1995 return on April 6, 2000.

Petitioner reported, inter alia, a tax due of $5,008, an

estimated tax penalty of $75, and the amount paid of $4,700.

Petitioner submitted an additional payment of $383 with his 1995

return.

     On May 15, 2000, respondent sent a letter entitled “We

Changed Your Account” (May 2000 letter) to petitioner.    The May

2000 letter notified petitioner that respondent had received

petitioner’s return and assessed the tax due reported on the

return.   The May 2000 letter stated in pertinent part:
                                    - 3 -
                              Statement of Account
                                                         1
    Account Balance Before Examination Action             $5,083.00CR
                                                             2
         Increase in Tax Because of Examination Action        5,008.00
         Filing Late Penalty Added                               96.00
         Interest Charged                                       158.99

         Amount You Now Owe                                      $179.99
     1
       This amount reflects the $4,700 petitioner paid on April
15, 1996, at the time he filed the extension, and the $383 paid
at time of filing his 1995 return.
     2
       This amount reflects the tax due reported by petitioner on
his 1995 return.

     Petitioner remitted $179.99 to respondent on May 29, 2000

(May 2000 payment).     On May 29, 2001, respondent issued

petitioner a notice of deficiency determining a deficiency and an

addition to tax under section 6651(a)(1) for 1995.                At trial,

petitioner and respondent agreed to a reduced deficiency of

$4,614 and, as a result, the addition to tax under section

6651(a)(1) was reduced to $1,134.50.          Petitioner does not dispute

the amount of the reduced deficiency, and the only issue is

whether he is liable for the reduced addition to tax under

section 6651(a)(1).

                                 Discussion

     Section 6651(a)(1) provides in relevant part:

          SEC. 6651(a).       Addition to the Tax.-–In case of
          failure-–

               (1) to file any return required * * * on the date
          prescribed therefor (determined with regard to any
          extension of time for filing), unless it is shown that
          such failure is due to reasonable cause and not due to
          willful neglect, there shall be added to the amount
          required to be shown as tax on such return 5 percent of
          the amount of such tax if the failure is for not more
                                     - 4 -

            than 1 month, with an additional 5 percent for each
            additional month or fraction thereof during which such
            failure continues, not exceeding 25 percent in the
            aggregate.

     A delay is due to reasonable cause if “the taxpayer

exercised ordinary business care and prudence and was

nevertheless unable to file the return within the prescribed

time”.    Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.; see also

United States v. Boyle, 469 U.S. 241, 243 (1985).    There is no

question here that petitioner’s 1995 return was not timely filed.

     Petitioner argues that he had reasonable cause for the

failure to timely file his 1995 return due to “Being overwhelmed

with work and doing a lot of traveling,” and that he believed he

“overpaid it [tax due]” and “expected to get a refund.”2

Generally, a busy work schedule or heavy workload does not

constitute reasonable cause for the untimely filing of a tax

return.    Dustin v. Commissioner, 53 T.C. 491, 507 (1969), affd.

467 F.2d 47 (9th Cir. 1972); Nauman v. Commissioner, T.C. Memo.

1998-217.   This is certainly true when the delay, as here, was

approximately 3½ years.   Further, petitioner’s belief that no tax

was due, or that he was entitled to a refund, does not constitute



     2
        When respondent determined a deficiency in petitioner’s
1995 Federal income tax, the addition to tax under sec.
6651(a)(1) increased. The addition to tax under sec. 6651(a)(1)
which is attributable to a deficiency in taxes is subject to the
deficiency procedures, and we have jurisdiction to review such
determination. Sec. 6665(b); see also Estate of DiRezza v.
Commissioner, 78 T.C. 19, 26 (1982).
                                   - 5 -

reasonable cause.       See Ferguson v. Commissioner, T.C. Memo. 1994-

114.       Lastly, petitioner filed an extension of time to file his

return, but the return was filed long after the extension period

expired.       See Sandoval v. Commissioner, T.C. Memo. 2000-189;

Zaban v. Commissioner, T.C. Memo. 1997-479.       We find that

petitioner did not have reasonable cause for the failure to

timely file his 1995 return.3

       Petitioner argues in the alternative that the section

6651(a)(1) addition to tax should be limited to the May 2000

payment.       In this regard, petitioner seems to believe that there

was some type of accord and satisfaction when he paid the $179.99

pursuant to the May 2000 letter.       Respondent issued the May 2000

letter to notify petitioner that respondent had summarily

assessed both the tax shown on petitioner’s delinquent 1995

return and the addition to tax that was due under section

6651(a)(1).4      It was this addition to tax that petitioner paid.


       3
        Sec. 7491(a) and (c), concerning the burdens of proof and
production, have no bearing on the underlying substantive issue.
With respect to the addition to tax, the burden of showing
reasonable cause under sec. 6651(a) remains on petitioner.
Higbee v. Commissioner, 116 T.C. 438, 446-448 (2001).
       4
        “Respondent is authorized to immediately (summarily)
assess and collect the amount of taxes that are computed and
shown due on a taxpayer’s original income tax return”. Meyer v.
Commissioner, 97 T.C. 555, 559 (1991); see also sec. 6201(a)(1).
Additionally, respondent may summarily assess the addition to tax
under sec. 6651(a)(1) if such additions are determined by the
amount of tax shown on the taxpayer’s return. Sec. 6665(b); see
also Meyer v. Commissioner, supra at 559. Summary assessments
                                                   (continued...)
                               - 6 -

     The record, however, is devoid of any evidence that

petitioner and respondent entered into an agreement that limited

the addition to tax to the May 2000 payment.     See sec. 7121;

Botany Worsted Mills v. United States, 278 U.S. 282, 288 (1929);

Estate of Meyer v. Commissioner, 58 T.C. 69, 70 (1972).

     Finally, petitioner appears to argue that respondent was

somehow at fault because the notice of deficiency overstated the

tax liability and the addition to tax.     This is a non sequitur.

The addition to tax under section 6651(a)(1) flows from the fact

that the return was not timely filed.     The additional addition to

tax was computed on the deficiency that was ultimately agreed by

the parties.   The fact that the notice of deficiency may have

asserted a higher deficiency had no bearing on the ultimate

determination of the addition to tax.

                                            Decision will be entered

                                       for respondent in the amounts

                                       of $4,614 for the deficiency

                                       and $1,134.50 for the addition

                                       to tax under section

                                       6651(a)(1).



     4
      (...continued)
are assessments not subject to the deficiency procedures and thus
are not within the deficiency jurisdiction of this Court. See
secs. 6211, 6212, 6213; see also Estate of Forgey v.
Commissioner, 115 T.C. 142, 146 (2000); Meyer v. Commissioner,
supra at 560.
