T.C. Memo. 2008-141

UNITED STATES TAX COURT

DAVID JAHN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6162-07. Filed May 21, 2008.

David R. Jahn, pro se.

Carrie L. Kleinjan, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

FOLEY, Judge: The issues for decision are whether

petitioner is entitled to itemized deductions relating to 2004
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code of 1986, as amended, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

and whether petitioner is liable for section 6651(a)(1)1 and (2)

and section 6654(a) additions to tax.

FINDINGS OF FACT

In 2004, petitioner received $96,990 of wages and $2,280 of

rental income from Project Control Specialists, Inc., which

withheld Federal income tax of $14,407. Petitioner, who was

married and had not filed an income tax return for several years,

did not file an income tax return relating to 2004. For that

year, respondent prepared a substitute for return (SFR) which set

forth gross income of $99,271, withholdings of $14,407, married

filing separate status, one personal exemption, and the standard

deduction. On December 11, 2006, respondent sent petitioner a

notice of deficiency relating to 2004 and determined a deficiency

of $20,647 and additions to tax of $1,404, $562, and $133

pursuant to section 6651(a)(1) and (2) and section 6654(a),

respectively. 

On January 30, 2007, petitioner, while residing in

Pennsylvania, filed his petition with the Court. 

OPINION

Petitioner contends that he is entitled to itemized

deductions relating to 2004. We disagree. A taxpayer must file
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a return in order to elect to itemize deductions. See sec.

63(e)(2). Yet, petitioner did not file a return relating to

2004. Accordingly, we sustain respondent’s determination

relating to the deficiency. 

Respondent also determined that petitioner is liable for

additions to tax for failure to file a return pursuant to section

6651(a)(1), failure to timely pay the amount shown on a return

pursuant to section 6651(a)(2), and failure to pay estimated

income tax pursuant to section 6654(a). Paragraphs (1) and (2)

of section 6651(a) provide, respectively, that a taxpayer shall

be subject to additions to tax for failure to timely file a

return and failure to timely pay the amount shown on a return,

unless it is shown that such failure was due to reasonable cause

and not willful neglect. Pursuant to section 7491(c), respondent

bears the burden of production relating to the section 6651(a)(1)

and (2) additions to tax. Respondent established that petitioner

failed to timely file his return and failed to timely pay the

amount shown on the 2004 SFR respondent prepared pursuant to

section 6020(b). See Wheeler v. Commissioner, 127 T.C. 200, 208-

209 (2006), affd. 521 F.3d 1289 (10th Cir. 2008); Higbee v.

Commissioner, 116 T.C. 438, 446 (2001). Petitioner’s failure to

timely file the return and timely pay the amount shown on the

2004 SFR was a result of willful neglect and not reasonable
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cause. Accordingly, respondent’s determinations relating to the

section 6651(a)(1) and (2) additions to tax are sustained. 

Unless one of the section 6654(e) exceptions applies, a

section 6654(a) addition to tax is imposed when estimated tax

payments, through withholdings or estimated quarterly payments,

do not equal the percentage of total liability required to be

paid pursuant to the statute. Niedringhaus v. Commissioner, 99

T.C. 202, 222 (1992). Because petitioner did not file a 2003 or

2004 return, petitioner was required to make an estimated tax

payment equal to 90 percent of his 2004 tax liability. See sec.

6654(d)(1)(B). Petitioner’s 2004 tax liability was $20,647. 

Thus, petitioner was required to make an estimated tax payment of

$18,582 in 2004. Petitioner’s employer, however, withheld only

$14,407, and petitioner did not make any other estimated tax

payments relating to 2004. Accordingly, petitioner is liable for

the section 6654(a) addition to tax. Pursuant to section

6654(g), petitioner is entitled to a credit for the Federal

income taxes withheld from his wages. See Bagby v. Commissioner,

102 T.C. 596, 613 (1994).

Contentions we have not addressed are irrelevant, moot, or

meritless.
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To reflect the foregoing, 

Decision will be entered

 under Rule 155.