1All section 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 Procedure, unless otherwise

indicated.

T.C. Memo. 2005-27

UNITED STATES TAX COURT

JAMES CARLYLE MALONEY, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10533-03. Filed February 16, 2005.

James Carlyle Maloney, Jr., pro se.

Donza M. Poole, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

KROUPA, Judge: Respondent determined a deficiency of

$16,061 for 2000, an addition to tax under section 6651(a)(1)1 of

$1,371 for failure to timely file a return, an addition to tax
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2Respondent conceded the sec. 6651(a)(2) addition to tax and

sought a correlative one-half-percent increase in the sec.

6651(a)(1) addition to tax. Respondent submitted no computation

to the Court reflecting the proposed increase.

under section 6651(a)(2) of $579 for failure to pay timely, and

an addition to tax of $268 under section 6654(a) for failure to

pay estimated taxes. 

After concessions,2 the issues to be decided are whether

petitioner had income of $72,606; whether he is liable for the

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

timely tax return; and whether he is liable for the addition to

tax under section 6654(a) for failure to make estimated tax

payments. We decide all the issues in the affirmative.

FINDINGS OF FACT

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

The stipulation of facts and the accompanying exhibits are

incorporated by this reference. Petitioner resided in North

Canton, Ohio, when he filed the petition.

Respondent has no record that petitioner filed a Federal

income tax return for 2000. Relying on a Form W-2, Wage and Tax

Statement, and Form 1099-DIV, Dividends and Distributions,

respondent determined that petitioner was paid $71,520 in wages

by Goodyear Tire & Rubber Co. and $1,086 in ordinary dividends by

TRW, Inc., in 2000. Respondent then determined against

petitioner a deficiency and additions to tax for failure to file
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3See supra note 2.

timely, pay timely,3 and make estimated tax payments. Respondent

then issued a notice of deficiency to petitioner for 2000, and

petitioner timely filed a petition contesting all of respondent’s

determinations in the deficiency notice.

OPINION

The Commissioner’s determination in the notice of deficiency

is presumed correct, and the taxpayer bears the burden of proving

otherwise. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933). The burden of proof may, under certain circumstances,

shift to the Commissioner with respect to a factual issue

affecting the taxpayer’s liability for tax. Sec. 7491(a). The

burden of proof does not shift in this case, however, because

petitioner failed to introduce credible evidence, maintain

adequate records, satisfy substantiation requirements, or

cooperate with respondent. Id. 

After carefully considering the facts, we conclude that

petitioner has failed to prove that respondent’s deficiency

determination in the notice was incorrect. The definition of

gross income under section 61(a) broadly encompasses any

accession to a taxpayer’s wealth. United States v. Burke, 504

U.S. 229 (1992); Commissioner v. Glenshaw Glass Co., 348 U.S.

426, 431 (1955). Compensation for services and dividends are

specifically included in that definition. Sec. 61(a)(1), (7). 
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We therefore conclude that the unreported amounts are includable

in petitioner’s gross income and are taxable. Accordingly, we

sustain respondent’s deficiency determination. 

Additions to Tax

We next address additions to tax. Respondent determined

petitioner was liable for an addition to tax of $1,371 under

section 6651(a)(1) for failure to file timely. Section

6651(a)(1) provides for an addition to tax for failure to file a

tax return on or before the specified filing date. 

Respondent bears the burden of production with respect to

any additions to tax. See sec. 7491(c). In order to meet this

burden, respondent must produce sufficient evidence establishing

that it is appropriate to impose the additions to tax. See

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

respondent has done so, the burden of proof is upon petitioner to

persuade the Court that respondent’s determination is incorrect. 

See id.

Having produced a certified transcript with no record of

petitioner’s 2000 tax return, respondent has met his burden of

producing evidence that petitioner failed to file a return for

2000. See Mehner v. Commissioner, T.C. Memo. 2003-203

(Commissioner’s initial burden of production is satisfied where

it is established that Commissioner has no record of a return). 

The burden therefore shifts to petitioner to prove that he either
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filed the return timely or had reasonable cause and lacked

willful neglect in not filing his return timely. See United

States v. Boyle, 469 U.S. 241, 245 (1985); Jackson v.

Commissioner, 864 F.2d 1521, 1527 (10th Cir. 1989), affg. 86 T.C.

492 (1986); Charlotte’s Office Boutique, Inc. v. Commissioner,

121 T.C. 89, 110 (2003); Higbee v. Commissioner, supra; Crocker

v. Commissioner, 92 T.C. 899, 912 (1989); Estate of Newton v.

Commissioner, T.C. Memo. 1990-208; sec. 301.6651-1(a)(2), Proced.

& Admin. Regs.

Petitioner claims to have requested an automatic extension

to file his return for 2000 and to have filed the return on April

30, 2001. Unable to find a copy of his return, however,

petitioner produced a computer-generated copy of what he claims

is his return for 2000 that he had saved on his home computer. 

Petitioner printed the return approximately 1 week before trial

and backdated it April 30, 2001. Petitioner cannot otherwise

corroborate that he in fact filed his return for 2000. 

In the Sixth Circuit, in which this case is appealable, no

presumption is raised that a properly mailed return has been

received by the Internal Revenue Service unless the return was

sent by registered or certified mail. Carroll v. Commissioner,

71 F.3d 1228, 1229-1230 (6th Cir. 1995) (“a taxpayer that sends a

document to the IRS by regular mail, as opposed to registered or

certified mail, does so at his peril”), affg. T.C. Memo. 1994-
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229; Surowka v. United States, 909 F.2d 148 (6th Cir. 1990);

Miller v. United States, 784 F.2d 728, 730 (6th Cir. 1986); Brown

v. Commissioner, T.C. Memo. 1997-567, affd. without published

opinion 181 F.3d 99 (6th Cir. 1999); Bruder v. Commissioner, T.C.

Memo. 1989-328. We are not required to accept, nor shall we

accept, petitioner’s testimony that he timely mailed his return. 

See Geiger v. Commissioner, 440 F.2d 688, 689 (9th Cir. 1971),

affg. per curiam T.C. Memo. 1969-159; Tokarski v. Commissioner,

87 T.C. 74, 77 (1986). Nor do we attach any weight to the

dubious copy of petitioner’s return for 2000 that he produced at

trial.

Moreover, petitioner makes no argument that he had

reasonable cause and lacked willful neglect in not filing the

return. In fact, he claims he did file the return. We therefore

find that petitioner has failed to demonstrate reasonable cause

and lack of willful neglect. Accordingly, we sustain

respondent’s determination that petitioner is liable for the

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

timely. Because respondent did not submit a computation to the

Court reflecting the proposed increase, we sustain respondent

only as to the addition to tax under section 6651(a)(1)

determined in the notice of deficiency. 

Respondent also determined petitioner was liable for an

addition to tax of $268 under section 6654(a) for failure to make
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estimated tax payments. Section 6654(a) provides for an addition

to tax where a taxpayer underpays estimated tax. Respondent’s

certified transcript of account establishes that petitioner made

no estimated tax payments during 2000, and none of the statutory

exceptions under section 6654(e) applies. We therefore find that

petitioner is liable for the addition to tax under section

6654(a) for underpaying estimated tax in 2000.

To reflect the foregoing regarding the deficiency, additions

to tax, and respondent’s concession, 

Decision will be entered

for respondent.