1 Unless otherwise indicated, subsequent section references are

to the Internal Revenue Code in effect for the year in issue.

T.C. Summary Opinion 2005-165

UNITED STATES TAX COURT

MICHAEL AND BARBARA GOLDMAN, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15095-02S. Filed November 10, 2005.

Michael and Barbara Goldman, pro se.

Bradley C. Plovan, for respondent.

POWELL, Special Trial Judge: This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed. The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.
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Petitioners timely filed a petition under section

6330(d)(1)(A) for review of respondent’s determination to proceed

with collection of their 1998 Federal income tax liability.

The issues are whether respondent seeks to collect from

petitioners an addition to tax under section 6651(a)(1) for

failure to timely file their 1998 tax return and whether

petitioners are liable for additions to tax under sections

6651(a)(2) for failure to timely pay tax and 6654 for failure to

pay estimated tax. At the time the petition was filed

petitioners resided in Potomac, Maryland.

Background

This case was submitted fully stipulated under Rule 122, Tax

Court Rules of Practice and Procedure. The facts are as follows. 

Petitioners obtained an extension of time to file their 1998 tax

return until October 15, 1999. The parties agree that the return

was timely filed. The Certificate of Assessments and Payments

shows that respondent assessed an addition to tax for failure to

pay estimated tax of $1,139.37, sec. 6654, and an addition to tax

for failure to pay tax of $2,857.96, sec. 6651(a)(2). The record

of assessment does not show that an addition to tax for failure

to timely file, sec. 6651(a)(1), was assessed. Petitioners have

not disputed that they are liable for the sections 6651(a)(2) and

6654 additions to tax. 
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By letter dated April 5, 2000, in a response to an inquiry

from petitioners, respondent did take the position that

petitioners’ 1998 return was untimely filed. Petitioners filed a

Claim for Refund and Request for Abatement for $2,857.96 as an

addition to tax for late filing. But, as stated, respondent did

not assess any addition to tax under section 6651(a)(1) for late

filing.

Discussion

We are somewhat bemused at petitioners’ position here. The

record of assessment shows that $2,857.96 was assessed as an

addition to tax for late payment. Sec. 6651(a)(2). Petitioners

do not dispute that they are liable for an addition to tax for

late payment. They insist, however, that the liability

respondent seeks to collect was an addition to tax for late

filing, even though there was never an assessment made for that

addition to tax. The assessment upon which the collection is

based is for late payment. It is true that the April 5, 2000,

letter refers to an addition to tax for late filing, but the

collection here is not based on an assessment of that addition to

tax.

Petitioners also object to paying additions to tax for both

the late payment, sec. 6651(a)(2), and the failure to pay

estimated tax. Sec. 6654. It is sufficient to say that these

are separate additions to tax for different actions.
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Reviewed and adopted as the report of the Small Tax Case

Division.

Decision will be entered

for respondent.