John Peter Zaimes

United States Tax Court
T.C. Memo. 2023-121JOHN PETER ZAIMES,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 16362-19L. Filed September 26, 2023.
—————
John Peter Zaimes, pro se.
Andrea M. Faldermeyer and Christine A. Fukushima, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MORRISON, Judge: This case is an appeal of the determination
of the Internal Revenue Service (IRS) Office of Appeals 1 to sustain the
filing of a notice of federal tax lien. We have jurisdiction under section
6330(d)(1). 2 Petitioner, John Peter Zaimes, during the collection-due-
process (CDP) hearing at the Office of Appeals, disputed his underlying
liability for a section 6651(a)(1) addition to tax of $24,213.37 and a
section 6651(a)(2) addition to tax of $12,984.92. Both additions are
related to the 2015 tax year. We sustain the IRS’s determination in full.
1 On July 1, 2019, the IRS Office of Appeals was renamed the IRS Independent
Office of Appeals. See Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133 Stat. 981,
983 (2019). We will use the name in effect at the times relevant to this case, i.e., the
“Office of Appeals.”
2 Unless otherwise indicated, statutory references are to the Internal Revenue
Code of 1986, Title 26 U.S.C., in effect at all relevant times, and regulation references
are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant
times.
Served 09/26/23
2
[*2] FINDINGS OF FACT
Zaimes resided in California when he filed the Petition in this
case.
On February 1, 2016, Zaimes made an estimated tax payment of
$40,000 toward his 2015 income tax liability.
On April 15, 2016, Zaimes timely filed an automatic extension of
time to file his 2015 federal tax return to October 17, 2016. He submitted
a $38,000 payment with his extension.
Andrea H. Izykowski, a certified public accountant, prepared the
2015 return that we conclude Zaimes mailed to the IRS by regular mail 3
on October 17, 2016, and a second 2015 return that he e-filed with the
IRS on November 13, 2017. On October 17, 2016, Izykowski suggested
to Zaimes that he send his 2015 return to the IRS by regular mail.
At some time before 6:24 p.m. Pacific Daylight Time (PDT) on
October 17, 2016, Zaimes received his 2015 return from Izykowski. On
the night of October 17, 2016, he (1) signed the return and (2) placed the
return and a $58,145 check in a manilla envelope. The envelope had a
privately metered postmark. 4
Zaimes made a photocopy of the first two pages of the 2015 return
that he mailed. These two pages were admitted as evidence. He signed
the second page of the return. Next to his signature was the date
“October 17, 2015” in the same handwriting as his signature. Zaimes
testified that he signed the return on October 17, 2016. He ascribed the
incorrect “October 17, 2015” date written next to his signature to a
mistake on his part. Izykowski’s name appears in the “Paid Preparer
Use Only” line on the second page of the return. Next to Izykowski’s
name are two dates: April 18, 2016, and October 17, 2016. The two dates
3 For reasons discussed infra OPINION, Part I.A.1, taxpayers who mail their
returns by certified or registered mail receive more statutory and regulatory
protections than taxpayers who mail their returns by regular mail. See § 7502(c);
Treas. Reg. § 301.7502-1(c), (e)(2)(i). When referring to “regular mail” in this Opinion,
we are referring to all types of mailing other than by certified mail, by registered mail,
or by a private delivery service (PDS).
4 The U.S. Postal Service (USPS) does not ordinarily postmark envelopes
bearing a postmark made by a private postage meter. See Herrera v. Commissioner,
T.C. Memo. 2012-308, at *23, aff’d per curiam, 544 F. App’x 592 (5th Cir. 2013). There
is no reason to think that Zaimes’s mailed return also bore a USPS postmark. We thus
conclude that his return did not have a USPS postmark.
3
[*3] next to Izykowski’s name have different typefaces. The April 18,
2016, date appears to be computer generated, while the October 17,
2016, date appears to have been made by stamp. Zaimes testified that
Izykowski finished entering the information on his return on October
17, 2016, and sent the return to him on that day. We find Zaimes’s
testimony in regard to these pages to be credible (i.e., that Zaimes wrote
the date October 17, 2015, next to his signature instead of October 17,
2016, by accident and that Izykowski finished preparing the return on
October 17, 2016). We therefore conclude that Izykowski finished
entering the information on the return on October 17, 2016, and not
April 18, 2016. We further conclude that these two pages were copies of
the first two pages of the return Zaimes mailed on October 17, 2016, and
we will rely on information on the two pages when discussing Zaimes’s
mailed return below.
Zaimes’s mailed return reported that he owed (1) a total tax
liability of $193,067 and (2) an estimated-tax penalty of $3,078. The
return also reported his $40,000 payment on February 1, 2016, and his
$38,000 payment on April 15, 2016. Accounting for these payments, the
mailed return showed an unpaid balance of $118,145.
The $58,145 check Zaimes enclosed with his mailed return was
intended to partially pay his 2015 income tax liability. Zaimes kept a
check register for the checking account from which he wrote the $58,145
check. The check register shows he wrote a $58,145 check on October 17,
2016.
At 6:24 p.m. PDT, October 17, 2016, Margaret Masier (a person
who worked with Izykowski) sent an email to “Julie” (another person
who worked with Izykowski), stating that “[Zaimes] is going to send
[the] hard copy of his return to the IRS tonight.” The email was referring
to Zaimes’s 2015 return that was eventually mailed, not the e-filed
return he later submitted to the IRS in November 2017. The email
instructed Julie to e-file Zaimes’s New York and California state tax
returns. As shown by the “To:” line of the email, the email was sent to
Zaimes’s and Julie’s email addresses. The body of the email named as
addressees both Zaimes and Julie. Zaimes’s mailed return was not
attached to the email. It must have been transmitted from Izykowski to
Zaimes by another communication.
At some point after 6:24 p.m. PDT on October 17, 2016, Zaimes
placed the manilla envelope containing his mailed return and the
$58,145 check in a drive-up USPS mailbox outside of a U.S. post office
4
[*4] near Los Angeles International Airport. Zaimes was on his way to
the airport on the night of October 17, 2016, to board a flight to New
York.
The IRS’s records do not reflect that it received either the mailed
return or the $58,145 check. Zaimes contends that he placed the return
in the mail and that the USPS did not deliver the return to the IRS. The
IRS contends that it did not receive the return because Zaimes did not
mail it. We believe Zaimes’s testimony that he placed the return in the
mail, and we find that the USPS did not deliver the return to the IRS.
At some time between October 17, 2016, and November 13, 2017,
(1) Zaimes learned that the IRS had not cashed the $58,145 check that
he had mailed, which suggested to Zaimes that the IRS had not received
the mailed return, and (2) Izykowski advised Zaimes to e-file his 2015
return. We need not determine the exact date that Zaimes became aware
that his check had not been cashed because it does not affect our
resolution of this case. See infra OPINION, Part II.
On November 13, 2017, Zaimes electronically filed his 2015
return. Zaimes’s e-filed 2015 return reported (1) a total income tax
liability of $185,615 5 and (2) an estimated-tax penalty of $3,078. After
taking into account his prior payments on February 1, 2016, and April
15, 2016, totaling $78,000, the e-filed return reported an unpaid balance
of $110,693. 6 The parties do not dispute that $110,693 was the correct
amount of Zaimes’s unpaid (1) tax liability and (2) estimated-tax
penalty. Zaimes did not submit payment to the IRS when he
electronically filed his return.
On December 4, 2017, the IRS processed Zaimes’s e-filed return
and assessed the following: (1) $185,615, the amount shown on Zaimes’s
e-filed return; (2) interest of $8,405.31; (3) a $24,213.37 section
6651(a)(1) addition to tax for failing to timely file his return; (4) a
5 The total tax liability reported on Zaimes’s e-filed return ($185,615) is $7,452
less than the total tax liability reported on his mailed return ($193,067). This was
because Zaimes reported a $7,452 liability on line 61 of his mailed return for “[h]ealth
care: individual responsibility” that he did not report on his e-filed return. Whether
Zaimes should have reported this $7,452 liability on his e-filed return is not at issue
in this case because the parties do not dispute that the e-filed return showed the correct
tax liability.
6 On his return e-filed on November 13, 2017, the amount of tax Zaimes
reported that he had paid did not include his mailed check for $58,145 from October
17, 2016.
5
[*5] $10,761.50 section 6651(a)(2) addition to tax for failing to timely
pay the tax shown on the return; and (5) a $3,078 section 6654
estimated-tax penalty.
On that same day, December 4, 2017, the IRS sent Zaimes a
“Notice of Tax Due and Demand for Payment” stating that he owed the
following amounts for 2015:
Additions to Tax/Penalties
Year Deficiency Interest § 6651(a)(1) § 6651(a)(2) § 6654 Total
2015 $107,615.00 $8,405.31 $24,213.37 $10,761.50 $3,078.00 $154,073.18
The $107,615 “deficiency” was computed as the $185,615 of tax reported
and assessed for 2015 minus $78,000 for payments made (consisting of
Zaimes’s $40,000 payment on February 1, 2016, and his $38,000
payment on April 15, 2016).
On March 15, 2018, Zaimes made a $100,000 payment towards
his 2015 tax liability. He has made no subsequent payments.
On September 25, 2018, the IRS sent Zaimes a “Notice of Federal
Tax Lien Filing and Your Right to a Hearing Under IRC 6320”
explaining that it had filed a notice of federal tax lien with respect to his
outstanding 2015 tax liability. The notice showed an unpaid balance of
$54,073.18, which equals the $154,073.18 total unpaid balance stated in
the December 4, 2017, notice minus the $100,000 payment that Zaimes
made on March 15, 2018. The notice informed Zaimes that he could seek
a CDP hearing.
On October 22, 2018, the IRS assessed a late-payment addition to
tax under section 6651(a)(2) for 2015 of $2,223.42. Combined with the
IRS’s previous assessment under section 6651(a)(2) of $10,761.50, this
increased Zaimes’s assessed liability for the section 6651(a)(2) addition
to tax to $12,984.92.
On October 30, 2018, Zaimes timely mailed a Form 12153,
“Request for a Collection Due Process or Equivalent Hearing,” which the
IRS received on November 5, 2018. Zaimes requested a CDP hearing
with respect to the notice of federal tax lien filing for tax year 2015 and
checked the box requesting the collection alternative of an offer-in-
compromise. In the section titled “Other,” Zaimes wrote “I do not believe
6
[*6] I should be responsible for penalties. I have documentation that I
filed on time.”
Zaimes’s case was assigned to Settlement Officer Sharma (SO
Sharma). On May 30, 2019, SO Sharma held the CDP hearing with
Zaimes. Zaimes took the position that he was not liable for the late-filing
and late-payment additions to tax but did not contest that he was liable
for the tax itself or for the section 6654 estimated-tax penalty. He
asserted that the IRS should abate the late-filing and late-payment
additions to tax because, he alleged, he had timely filed his 2015 return
and had timely paid a portion of his 2015 tax liability by mailing the
$58,145 check on October 17, 2016. During the hearing Zaimes did not
request any collection alternative or provide financial information to
support consideration of such an alternative.
On July 31, 2019, SO Sharma sustained the filing of the notice of
federal tax lien and issued Zaimes a “Notice of Determination
Concerning Collection Actions Under Section 6320 and/or 6330.” She
determined that the IRS should not abate Zaimes’s 2015 late-filing and
late-payment additions to tax because Zaimes did not establish that he
had timely filed his return or timely paid his 2015 tax liability. She also
determined that Zaimes did not qualify for the IRS’s “first-time
abatement” program because the IRS had assessed late-filing and late-
payment additions to tax against him for the 2012, 2013, and 2014
taxable years. 7
On September 6, 2019, Zaimes timely filed the Petition in this
case. He has not raised any issues aside from his liability for the late-
filing and late-payment additions to tax for 2015.
OPINION
When the IRS assesses tax and demands payment, section 6321
automatically imposes a tax lien on the taxpayer’s property or property
rights. The lien is treated as arising from the time of the assessment.
§ 6322. To perfect this lien, the IRS must file a notice of federal tax lien
in the county where the taxpayer’s property is situated. § 6323(a), (f).
Section 6320 requires the IRS to send notice to the taxpayer that it has
7 At trial the IRS submitted transcripts of Zaimes’s 2010 through 2014 Forms
1040, “U.S. Individual Income Tax Return,” retrieved from the IRS’s Transcript
Delivery System. The transcripts show that the IRS received tax returns from Zaimes
for all five years after the filing deadlines. In addition, the transcripts show that
Zaimes failed to timely pay the tax owed for each of the five years.
7
[*7] filed the notice of federal tax lien. § 6320(a)(1) and (2). This notice
must also inform the taxpayer of the taxpayer’s right to seek a CDP
hearing. § 6320(a)(3)(B).
At a CDP hearing the taxpayer may challenge the existence or
amount of the underlying liability (including the existence or amount of
any penalties or additions to tax for which the notice of lien was filed)
but may do so only if the taxpayer had not previously received a notice
of deficiency from the IRS regarding the underlying liability or
otherwise had no prior opportunity to challenge the liability. See
§ 6330(c)(2)(B); Hoyle v. Commissioner, 131 T.C. 197, 199 (2008),
supplemented by 136 T.C. 463 (2011); see also Dykstra v. Commissioner,
T.C. Memo. 2017-156, at *16 (“A taxpayer’s underlying tax liability
includes penalties and additions to tax that are part of the unpaid tax
that the [IRS] seeks to collect.”). Before Zaimes’s CDP hearing the IRS
had not sent a notice of deficiency to Zaimes, and he had no prior
opportunity to challenge his alleged liability. Thus, Zaimes could
properly dispute his alleged liability at the CDP hearing.
When the existence or the amount of the underlying liability is
properly at issue, the Court will review the Office of Appeals’
determinations de novo. See Goza v. Commissioner, 114 T.C. 176, 181–
82 (2000). The scope of review as to the existence or amount of the
underlying liability is also de novo. See Jordan v. Commissioner, 134
T.C. 1, 8–9 (2010), supplemented by T.C. Memo. 2011-243. Because the
scope of review is de novo, both of the parties may introduce evidence
that was not considered by the Office of Appeals. See id.; see also Kim v.
United States, 121 F.3d 1269, 1272 (9th Cir. 1997).
I. Zaimes is liable for the section 6651(a)(1) addition to tax for
failing to timely file his 2015 return.
We first address whether Zaimes is liable for the addition to tax
under section 6651(a)(1) for failing to timely file his return. Section
6651(a)(1) provides:
In case of failure . . . to file any return . . . 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 than 1 month, with
8
[*8] an additional 5 percent for each additional month or
fraction thereof during which such failure continues, not
exceeding 25 percent in the aggregate . . . .
The amount of the addition to tax is therefore equal to the following
percentages of tax shown on the return:
Filing Date Percentage
From one day after deadline until one 5%
month after deadline
From one month, one day after deadline 10%
until two months after deadline
From two months, one day after deadline 15%
until three months after deadline
From three months, one day after deadline 20%
until four months after deadline
Four months, one day after deadline or later 25%
Section 6651(a)(1) does not specifically address whether
reasonable cause for the taxpayer’s failure to file by the start of an
additional month can excuse the 5% incremental addition to tax for the
taxpayer’s failure to file during that month (or fraction thereof). For
example, could Zaimes’s attempt to file his 2015 return on October 17,
2016, serve as reasonable cause for his failure to file his return on
November 15, 2016, so as to absolve him of the 5% incremental addition
to tax for failing to file the return for the “additional month” of
November 15 to December 15, 2016? Under two regulatory provisions
related to section 6651(a)(1), reasonable cause for a taxpayer’s failure to
file by the start of an additional month does not excuse the taxpayer
from the 5% incremental addition to tax. 8 We thus conclude that any
8 First, Treasury Regulation § 301.6651-1(a)(1) provides:
In case of failure to file a return . . . on or before the date prescribed for
filing (determined with regard to any extension of time for such filing),
there shall be added to the tax required to be shown on the return the
amount specified below unless the failure to file the return within the
prescribed time is shown to the satisfaction of the district director or
the director of the service center to be due to reasonable cause and not
to willful neglect. The amount to be added to the tax is 5 percent thereof
if the failure is for not more than 1 month, with an additional 5 percent
for each additional month or fraction thereof during which the failure
continues, but not to exceed 25 percent in the aggregate.
9
[*9] reason for the continuing failure to file that arises after the filing
deadline does not excuse the taxpayer from paying the addition to tax
for any month in which the return is not timely filed. 9
Second, Treasury Regulation § 301.6651-1(c)(1) provides: “If the taxpayer exercised
ordinary business care and prudence and was nevertheless unable to file the return
within the prescribed time, then the delay is due to a reasonable cause.”
9 The same conclusion was reached in Oosterwijk v. United States, No. CCB-
21-1151, 2022 WL 255348 (D. Md. Jan. 27, 2022). In that case the taxpayers did not
timely file their return by the April 17, 2018, deadline after their accountant failed to
timely request an extension for the time to file. Id. at *1. After discovering the
extension request had not been sent, the accountant advised the taxpayers on April
30, 2018, to file an extension request because “if they filed the six-month Extension
Request at that moment, they would have until October 15, 2018, to file their tax
return, and the penalties for late filing would halt.” Id. The taxpayers followed their
accountant’s advice and filed the extension request, “incorrectly believ[ing] that by
. . . submitting the Extension Request . . . (during the first month of lateness), they
would halt the accrual of any late filing penalties until after October [15,] 2018.” Id. at
*1–2. They filed their return on June 29, 2018. Id. at *1. After receiving the return,
the IRS assessed the taxpayers the addition to tax under section 6651(a)(1) for three
months. Oosterwijk, 2022 WL 255348, at *2. The taxpayers argued that they should be
excused from the addition to tax for the months beginning on May 15, 2018, and June
15, 2018, because, they claimed, their accountant’s advice that penalties would halt
after they filed an extension request on April 30, 2018, was reasonable cause for their
failure to file by the first day of those respective two months. Id. at *7. The District
Court rejected this argument and concluded that taxpayers can rely only on reasonable
cause that existed at the filing deadline. Id. at *9.
We admittedly reached a different conclusion in Porganan v. Commissioner,
T.C. Memo. 1969-166, 28 T.C.M. (CCH) 829. In that case the taxpayer’s accountant
failed to prepare a return in time for it to be filed by the April 15, 1962, filing deadline.
Id. at 831. On May 15, 1962, the taxpayer filed a return that the accountant had
completed based in part on estimates of the reported amounts. Id. On February 25,
1963, the taxpayer filed an amended return. Id. The IRS argued that the maximum
addition to tax applied because (1) the taxpayer did not have reasonable cause for
failing to timely file his return, (2) the return filed on May 15, 1962, was not a valid
return, and (3) a valid return was not filed until February 25, 1963. Id. at 833. The
Court held that the taxpayer did not have reasonable cause for failing to timely file for
the month beginning on April 15, 1962. Id. However, the Court further held that the
taxpayer’s filing of a return on May 15, 1962, was reasonable cause for the continuing
failure to timely file as of May 15, 1962, even if the return filed on that day was invalid.
Id. The Court thus held that the taxpayer was excused from the addition to tax for all
months after the first month in which the return was late. Id. at 834. Implicit in the
court’s reasoning is that reasonable cause for the taxpayer’s failure to file by the start
of additional months can excuse the incremental additions to tax during those months
even when the taxpayer did not have reasonable cause at the filing deadline. Porganan
is a memorandum opinion. It is not a binding precedent of this Court. Huffman v.
Commissioner, 126 T.C. 322, 350 (2006) (citing Dunaway v. Commissioner, 124 T.C.
10[*10] The computation of the addition to tax under section 6651(a)(1)
must take into account section 6651(b)(1) and (c)(1). Section 6651(b)(1)
provides that “[f]or purposes of . . . [section 6651(a)(1)], the amount of
tax required to be shown on the return shall be reduced by the amount
of any part of the tax which is paid on or before the date prescribed for
payment of the tax and by the amount of any credit against the tax
which may be claimed on the return.” Section 6651(c)(1) provides that
the amount of the addition to tax under section 6651(a)(2) for the failure
to timely pay the amount shown as tax on the return reduces the
addition to tax under section 6651(a)(1) for any month in which both
additions to tax apply.
Zaimes gives two arguments for why he is not liable for the
section 6651(a)(1) addition to tax. First, Zaimes argues that he did
timely file his return. Second, Zaimes contends that even if he did not
timely file his return, he had reasonable cause for his failure to do so.
Our analysis will thus proceed in two parts. First, we will address
whether Zaimes timely filed his 2015 return. We conclude that he did
not. See infra OPINION, Part I.A. Second, we will address whether
Zaimes had reasonable cause for failing to timely file his return. We
conclude that he did not. 10 See infra OPINION, Part I.B. Zaimes has the
burden of persuasion on these issues. 11
80, 87 (2005)), aff’d, 518 F.3d 357 (6th Cir. 2008). The Court in Porganan did not
discuss Treasury Regulation § 301.6651-1. Therefore, we find the conclusion in
Porganan unpersuasive.
10 The addition to tax for failing to file a timely return is not imposed if “it is
shown that such failure is due to reasonable cause and not due to willful neglect.”
§ 6651(a)(1). Because we hold that Zaimes did not have reasonable cause for his failure
to timely file, we need not determine whether his failure was due to willful neglect.
11 Section 7491(c) provides that the IRS “shall have the burden of production
in any court proceeding with respect to the liability of any individual for any . . .
addition to tax.” The IRS satisfies its burden of production under section 7491(c) for
the section 6651(a)(1) addition to tax when it produces enough evidence that a
reasonable finder of fact could conclude that the taxpayer failed to timely file a
required federal income tax return. See Wheeler v. Commissioner, 127 T.C. 200, 207–
08 (2006), aff’d, 521 F.3d 1289 (10th Cir. 2008); Higbee v. Commissioner, 116 T.C. 438,
447 (2001); 21B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 5122 (2d ed. 2023) (“Compared to the several weights of the burden of
persuasion, the burden of production has only one; the party must introduce sufficient
evidence to support a jury finding in his behalf—that is, enough evidence that a
reasonable jury could find that evidence satisfied the requisite burden of persuasion.”).
At trial the IRS submitted a Form 4340, Certificate of Assessments, Payments, and
Other Specified Matters, showing that the IRS received a 2015 return from Zaimes
11
[*11] A. Zaimes did not timely file his 2015 return even though he
mailed it on the day it was due.
Returns for U.S. citizens and residents using the calendar year
for their tax year “shall be filed on or before” April 15 of the following
year. § 6072(a). “When the last day prescribed . . . for performing any act
falls on Saturday, Sunday, or a legal holiday, the performance of such
act is considered timely if it is performed on the next succeeding day
which is not Saturday, Sunday, or a legal holiday.” § 7503; see also
Treas. Reg. § 301.7503-1(a) (providing that “[s]ection 7503 applies to
acts to be performed by the taxpayer (such as, the filing of any return of,
and the payment of, any income . . . tax)”). The filing due date for
calendar-year-2015 returns was April 15, 2016. § 6072(a). Because this
day was District of Columbia Emancipation Day, and because the next
two days were Saturday and Sunday, a filing made on April 18, 2016, is
“considered timely.” § 7503. Under Treasury Regulation § 1.6081-4(a),
an individual taxpayer “will be allowed an automatic 6-month extension
of the time to file the return after the time prescribed for filing the
return” if the taxpayer applies to the IRS for the extension. Zaimes
applied for such an extension for his 2015 return. The due date for the
return was therefore extended from April 15, 2016, to October 15, 2016.
See id. But because October 15, 2016, was a Saturday, a filing of his
return made on Monday, October 17, 2016, would have been “considered
timely.” See § 7503.
A taxpayer’s return is considered filed only when delivered to the
IRS. United States v. Lombardo, 241 U.S. 73, 76 (1916). Section 7502
and its related regulations provide rules by which a return will be
deemed delivered when it is mailed. The relevant provisions of section
7502 are reproduced below:
only on November 13, 2017. Because Zaimes’s 2015 return was due October 17, 2016,
the IRS has satisfied its burden of production for the section 6651(a)(1) addition to tax.
Therefore, Zaimes must “come forward with evidence sufficient to persuade a court
that the [IRS’s] determination is incorrect.” Higbee, 116 T.C. at 447; see also Mason v.
Commissioner, 68 T.C. 354, 356–57 (1977).
12
[*12] Sec. 7502. Timely mailing treated as timely filing and
paying.
(a) General rule.—
(1) Date of delivery.—If any return . . .
required to be filed . . . within a prescribed period or
on or before a prescribed date under authority of any
provision of the internal revenue laws is, after such
period or such date, delivered by United States mail
to the agency, officer, or office with which such
return . . . is required to be filed, . . . the date of the
United States postmark stamped on the cover in
which such return . . . is mailed shall be deemed to
be the date of delivery . . . .
(2) Mailing requirements.—This subsection
shall apply only if—
(A) the postmark date falls within the
prescribed period or on or before the
prescribed date—
(i) for the filing (including any
extension granted for such filing) of the
return, . . . [and]
....
(B) the return . . . was, within the time
prescribed in subparagraph (A), deposited in
the mail in the United States in an envelope
or other appropriate wrapper, postage
prepaid, properly addressed to the agency,
officer, or office with which the return . . . is
required to be filed . . . .
(b) Postmarks.—This section shall apply in the case
of postmarks not made by the United States Postal Service
only if and to the extent provided by regulations prescribed
by the Secretary.
(c) Registered and certified mailing; electronic
filing.—
(1) Registered mail.—For purposes of this
section, if any return . . . is sent by United States
registered mail—
(A) such registration shall be prima
facie evidence that the return . . . was
delivered to the agency, officer, or office to
which addressed; and
13
[*13] (B) the date of registration shall be
deemed the postmark date.
(2) Certified mail; electronic filing.—The
Secretary is authorized to provide by regulations the
extent to which the provisions of paragraph (1) with
respect to prima facie evidence of delivery and the
postmark date shall apply to certified mail and
electronic filing.
....
(f) Treatment of private delivery services.—
(1) In general.—Any reference in this section
to the United States mail shall be treated as
including a reference to any designated delivery
service, and any reference in this section to a
postmark by the United States Postal Service shall
be treated as including a reference to any date
recorded or marked as described in paragraph (2)(C)
by any designated delivery service.
(2) Designated delivery service.—For
purposes of this subsection, the term “designated
delivery service” means any delivery service
provided by a trade or business if such service is
designated by the Secretary for purposes of this
section. The Secretary may designate a delivery
service under the preceding sentence only if the
Secretary determines that such service—
(A) is available to the general public,
(B) is at least as timely and reliable on
a regular basis as the United States mail,
(C) records electronically to its data
base, kept in the regular course of its
business, or marks on the cover in which any
item referred to in this section is to be
delivered, the date on which such item was
given to such trade or business for delivery,
and
(D) meets such other criteria as the
Secretary may prescribe.
(3) Equivalents of registered and certified
mail.—The Secretary may provide a rule similar to
the rule of paragraph (1) with respect to any service
provided by a designated delivery service which is
14
[*14] substantially equivalent to United States registered
or certified mail.
The Treasury Department has issued regulations under section
7502. Treas. Reg. § 301.7502-1. The relevant provisions of these
regulations are reproduced below:
§ 301.7502-1 Timely mailing of documents . . . treated as
timely filing . . . .
(a) General rule. Section 7502 provides that, if the
requirements of that section are met, a document . . . is
deemed to be filed . . . on the date of the postmark stamped
on the envelope or other appropriate wrapper (envelope) in
which the document . . . was mailed. Thus, if the envelope
that contains the document . . . has a timely postmark, the
document . . . is considered timely filed . . . even if it is
received after the last date, or the last day of the period,
prescribed for filing the document . . . . Except as provided
in . . . paragraph (d) of this section, relating to electronically
filed documents, section 7502 is applicable . . . only if the
document . . . is mailed in accordance with paragraph (c) of
this section and is delivered in accordance with paragraph
(e) of this section.
....
(c) Mailing requirements—
(1) In general. Section 7502 does not apply
unless the document . . . is mailed in accordance with
the following requirements:
(i) Envelope and address. The
document . . . must be contained in an
envelope, properly addressed to the agency,
officer, or office with which the document is
required to be filed . . . .
(ii) Timely deposited in U.S. mail. The
document . . . must be deposited within the
prescribed time in the mail in the United
States with sufficient postage prepaid. . . .
(iii) Postmark—
(A) U.S. Postal Service
postmark. If the postmark on the
envelope is made by the U.S. Postal
Service, the postmark must bear a date
on or before the last date, or the last
15
[*15] day of the period, prescribed for filing
the document . . . . If the postmark does
not bear a date on or before the last
date, or the last day of the period,
prescribed for filing the document . . . ,
the document . . . is considered not to
be timely filed . . . , regardless of when
the document . . . is deposited in the
mail. Accordingly, the sender who
relies upon the applicability of section
7502 assumes the risk that the
postmark will bear a date on or before
the last date, or the last day of the
period, prescribed for filing the
document . . . . See, however, paragraph
(c)(2) of this section with respect to the
use of registered mail or certified mail
to avoid this risk. If the postmark on
the envelope is made by the U.S. Postal
Service but is not legible, the person
who is required to file the document
. . . has the burden of proving the date
that the postmark was made.
Furthermore, if the envelope that
contains a document . . . has a timely
postmark made by the U.S. Postal
Service, but it is received after the time
when a document . . . postmarked and
mailed at that time would ordinarily be
received, the sender may be required to
prove that it was timely mailed.
(B) Postmark made by other than
U.S. Postal Service—
(1) In general. If the
postmark on the envelope is
made other than by the U.S.
Postal Service—
(i) The postmark so
made must bear a legible
date on or before the last
date, or the last day of the
period, prescribed for
16
[*16] filing the document . . .
and
(ii) The document
. . . must be received by
the agency, officer, or
office with which it is
required to be filed not
later than the time when
a document . . . contained
in an envelope that is
properly addressed,
mailed, and sent by the
same class of mail would
ordinarily be received if it
were postmarked at the
same point of origin by the
U.S. Postal Service on the
last date, or the last day of
the period, prescribed for
filing the document . . . .
(2) Document . . . received
late. If a document . . . described
in paragraph (c)(1)(iii)(B)(1) is
received after the time when a
document . . . so mailed and so
postmarked by the U.S. Postal
Service would ordinarily be
received, the document . . . is
treated as having been received
at the time when a document . . .
so mailed and so postmarked
would ordinarily be received if
the person who is required to file
the document . . . establishes—
(i) That it was
actually deposited in the
U.S. mail before the last
collection of mail from the
place of deposit that was
postmarked (except for
the metered mail) by the
U.S. Postal Service on or
before the last date, or the
17
[*17] last day of the period,
prescribed for filing the
document . . . ;
(ii) That the delay
in receiving the document
. . . was due to a delay in
the transmission of the
U.S. mail; and
(iii) The cause of
the delay.
(3) U.S. and non-U.S.
postmarks. If the envelope has a
postmark made by the U.S.
Postal Service in addition to a
postmark not so made, the
postmark that was not made by
the U.S. Postal Service is
disregarded, and whether the
envelope was mailed in
accordance with this paragraph
(c)(1)(iii)(B) will be determined
solely by applying the rule of
paragraph (c)(1)(iii)(A) of this
section.
(2) Registered or certified mail. If the
document . . . is sent by U.S. registered mail,
the date of registration of the document . . . is
treated as the postmark date. If the document
. . . is sent by U.S. certified mail and the
sender’s receipt is postmarked by the postal
employee to whom the document . . . is
presented, the date of the U.S. postmark on
the receipt is treated as the postmark date of
the document . . . . Accordingly, the risk that
the document . . . will not be postmarked on
the day that it is deposited in the mail may be
eliminated by the use of registered or certified
mail.
(3) Private delivery services. Under
section 7502(f)(1), a service of a private
delivery service (PDS) may be treated as an
equivalent to United States mail for purposes
of the postmark rule if the Commissioner
18
[*18] determines that the service satisfies the
conditions of section 7502(f)(2). Thus, the
Commissioner may, in guidance published in
the Internal Revenue Bulletin (see
§ 301.601(d)(2)(ii)(b) of this chapter),
prescribe procedures and additional rules to
designate a service of a PDS for purposes of
the postmark rule of section 7502(a).
(d) Electronically filed documents—
(1) In general. A document filed electronically
with an electronic return transmitter (as defined in
paragraph (d)(3)(i) of this section and authorized
pursuant to paragraph (d)(2) of this section) in the
manner and time prescribed by the Commissioner is
deemed to be filed on the date of the electronic
postmark (as defined in paragraph (d)(3)(ii) of this
section) given by the authorized electronic return
transmitter. Thus, if the electronic postmark is
timely, the document is considered filed timely
although it is received by the agency, officer, or office
after the last date, or the last day of the period,
prescribed for filing such document.
(2) Authorized electronic return transmitters.
The Commissioner may enter into an agreement
with an electronic return transmitter or prescribe in
forms, instructions, or other appropriate guidance
the procedures under which the electronic return
transmitter is authorized to provide taxpayers with
an electronic postmark to acknowledge the date and
time that the electronic return transmitter received
the electronically filed document.
(3) Definitions—
(i) Electronic return transmitter. For
purposes of this paragraph (d), the term
electronic return transmitter has the same
meaning as contained in section 3.01(4) of
Rev. Proc. 2000-31 (2000-31 I.R.B. 146 (July
31, 2000)) (see § 601.601(d)(2) of this chapter)
or in procedures prescribed by the
Commissioner.
(ii) Electronic postmark. For purposes
of this paragraph (d), the term electronic
postmark means a record of the date and time
19
[*19] (in a particular time zone) that an authorized
electronic return transmitter receives the
transmission of a taxpayer’s electronically
filed document on its host system. However, if
the taxpayer and the electronic return
transmitter are located in different time
zones, it is the taxpayer’s time zone that
controls the timeliness of the electronically
filed document.
(e) Delivery—
(1) General rule. Except as provided in section
7502(f) and paragraphs (c)(3) and (d) of this section,
section 7502 is not applicable unless the document
. . . is delivered by U.S. mail to the agency, officer, or
office with which the document is required to be filed
or to which payment is required to be made.
(2) Exceptions to actual delivery—
(i) Registered and certified mail. In the
case of a document . . . sent by registered or
certified mail, proof that the document was
properly registered or that a postmarked
certified mail sender’s receipt was properly
issued and that the envelope was properly
addressed to the agency, officer, or office
constitutes prima facie evidence that the
document was delivered to the agency, officer,
or office. Other than direct proof of actual
delivery, proof of proper use of registered or
certified mail, and proof of proper use of a
duly designated PDS as provided for by
paragraph (e)(2)(ii) of this section, are the
exclusive means to establish prima facie
evidence of delivery of a document to the
agency, officer, or office with which the
document is required to be filed. No other
evidence of a postmark or of mailing will be
prima facie evidence of delivery or raise a
presumption that the document was
delivered.
(ii) Equivalents of registered and
certified mail. Under section 7502(f)(3), the
Secretary may extend the prima facie
evidence of delivery rule of section
20
[*20] 7502(c)(1)(A) to a service of a designated PDS,
which is substantially equivalent to United
States registered or certified mail. Thus, the
Commissioner may, in guidance published in
the Internal Revenue Bulletin (see §
601.601(d)(2)(ii)(b) of this chapter), prescribe
procedures and additional rules to designate
a service of a PDS for purposes of
demonstrating prima facie evidence of
delivery of a document pursuant to section
7502(c).
Because Zaimes resided in California when he filed his Petition,
this case is appealable to the U.S. Court of Appeals for the Ninth Circuit
absent stipulation from the parties otherwise. See § 7482(b)(1)(G)(i). We
will therefore follow controlling precedent of the Ninth Circuit on any
issue in this case. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970),
aff’d, 445 F.2d 985 (10th Cir. 1971). In Baldwin v. United States, 921
F.3d 836 (9th Cir. 2019), the Ninth Circuit determined which types of
evidence are admissible to prove delivery under Treasury Regulation
§ 301.7502-1(e). In that case the taxpayers were seeking an income tax
refund. Baldwin, 921 F.3d at 839. To receive the refund the taxpayers
needed to file an amended return by October 15, 2011. Id. The taxpayers
claimed that they mailed an amended return to the IRS during June
2011, but they conceded that the IRS never received the return. Id. at
842. The taxpayers relied on the testimony of two of their employees to
prove that they had mailed the return by October 15, 2011. Id. The
Ninth Circuit concluded that the taxpayers could prove delivery only by
showing that (1) the return was actually delivered to the IRS, see
§ 7502(a); Lombardo, 241 U.S. at 76; (2) the return was e-filed with the
IRS on or before the filing deadline, see § 7502(c)(2); Treas. Reg.
§ 301.7502-1(d)(1), (e)(1); or (3) the return was mailed to the IRS by
certified mail, registered mail, or a PDS on or before the filing deadline,
see Treas. Reg. § 301.7502-1(e)(2)(i); Baldwin, 921 F.3d at 841–42. The
taxpayers could not rely on evidence that the amended return was
mailed by regular mail to prove it was delivered. Baldwin, 921 F.3d at
842, 844. The Court concluded that the return was not delivered and
had therefore not been filed. Id. at 844.
Zaimes contends that he timely filed his 2015 return because he
mailed the return on the evening of the day it was due.
21
[*21] Zaimes’s return was not delivered to the IRS on or before the
return’s due date. See Lombardo, 241 U.S. at 76. Therefore, his return
is considered timely filed only if it met the requirements of section 7502
and the related regulations to section 7502. There are four such
requirements. First, the return must have been eventually delivered to
the IRS sometime (or one of the exceptions to this eventual-delivery
requirement must be applicable). Treas. Reg. § 301.7502-1(e)(1)
(referring to the exceptions under section 7502(f) and Treasury
Regulation § 301.7502-1(c)(3) and (d)); id. para. (e)(2). Second, the
envelope containing Zaimes’s return (which also contained Zaimes’s
check) had to be properly addressed. Id. para. (c)(1)(i). Third, that
envelope had to be deposited in the mail with sufficient postage. Id.
subdiv. (ii). Fourth, the postmark on the envelope containing Zaimes’s
return had to satisfy the requirements of Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B). As explained below, we conclude that the four
requirements were not met. Therefore, Zaimes’s return was not timely
filed.
1. Zaimes’s return was not delivered to the IRS.
First, the return must be eventually delivered to the IRS or must
be presumed delivered under one of the exceptions listed in Treasury
Regulation § 301.7502-1(e)(1). The exceptions are only for returns filed
electronically or returns mailed by registered mail, certified mail, or a
PDS. Returns that are e-filed with the IRS are “deemed to be filed on
the date of the electronic postmark . . . given by the authorized electronic
return transmitter.” Id. para. (d)(1). For returns sent by registered or
certified mail, proof that the document was properly registered (in the
case of registered mail) or that a postmarked certified mail sender’s
receipt was properly issued (in the case of certified mail) and that the
envelope was properly addressed (in the case of both registered and
certified mail) constitutes prima facie evidence that the return was
delivered. § 7502(c); Treas. Reg. § 301.7502-1(e)(2)(i). Proof of proper use
of a PDS by the taxpayer also constitutes prima facie evidence that the
return was delivered. § 7502(f); Treas. Reg. § 301.7502-1(e)(2)(i). Zaimes
concedes that (1) his mailed return was never delivered to the IRS, (2) he
did not e-file his return on or before October 17, 2016, and (3) he did not
send his return by certified or registered mail or by a PDS. Zaimes
instead argues that his testimony stating that he mailed his return by
regular mail and the other evidence he offered at trial in support of his
testimony are sufficient to prove that he timely filed his return. That
argument is mistaken. See Baldwin, 921 F.3d at 841–42. Therefore, the
requirement that Zaimes’s return be delivered to the IRS was not met.
22
[*22] 2. Zaimes’s envelope containing his return was not
properly addressed.
Second, the return must be “contained in an envelope, properly
addressed to the agency, officer, or office with which the document is
required to be filed.” Treas. Reg. § 301.7502-1(c)(1)(i). To file his mailed
return, Zaimes was required to send the return to the following address:
“Internal Revenue Service, P.O. Box 7704, San Francisco, CA 94120-
7704.” See 2015 Instructions for Form 1040, U.S. Individual Income Tax
Return, at 105. That address had to appear on the envelope. See Treas.
Reg. § 301.7502-1(c)(1)(i). The record does not show what address was
on the envelope. Therefore, we do not find that the envelope was
properly addressed.
3. Zaimes’s envelope containing his return did not have
sufficient postage.
Third, the return must be “deposited within the prescribed time
in the mail of the United States with sufficient postage prepaid.” Id.subdiv. (ii). Zaimes did not present evidence that there was sufficient
postage on the envelope containing his return. His brief claims that the
envelope had a “postage strip on it covering the necessary postage.” The
brief says that his testimony supports this factual assertion. However,
his testimony never mentions postage. Thus, we do not find that the
envelope had sufficient postage.
4. Zaimes’s return did not satisfy Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B).
Fourth, the mailed return must satisfy Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B). One requirement of that provision is that the
envelope containing the return had to have a legible postmark dated on
or before October 17, 2016. This requirement is imposed by Treasury
Regulation § 301.7502-1(c)(1)(iii)(B)(1)(i). Zaimes did not introduce a
copy of the envelope showing a legible and timely postmark. However,
he credibly testified that his envelope bore a privately metered postmark
dated October 17, 2016. The return therefore satisfies Treasury
Regulation § 301.7502-1(c)(1)(iii)(B)(1)(i). See Perry Segura & Assocs.,
Inc. v. Commissioner, T.C. Memo. 1975-80, 1975 Tax Ct. Memo LEXIS
294, at *8 (allowing the taxpayer to use extrinsic evidence to prove that
its envelope bore a timely postmark because the original envelope and
postmark had been destroyed in transit and was therefore unavailable
for trial).
23
[*23] But in addition to proving that his envelope had a timely
postmark, Zaimes must prove that either Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B)(1)(ii) or (2) is satisfied. Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B)(1)(ii) requires that Zaimes’s return was
received by the IRS in the time it would ordinarily take for the IRS to
receive mail if the mail had been sent by the same class of mail as
Zaimes’s return was sent and if the USPS had postmarked the mail on
the last date prescribed for filing his return. For example, if it would
ordinarily have taken three days for mail to arrive at the IRS had it been
postmarked by the USPS and mailed from the same location as Zaimes’s
return had been mailed on October 17, 2016, Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B)(1)(ii) would be satisfied if Zaimes’s return was
received by the IRS three days after it was mailed. However, if Zaimes’s
return was received by the IRS ten days after it was mailed, Treasury
Regulation § 301.7502-1(c)(1)(iii)(B)(1)(ii) would not be satisfied.
Zaimes’s mailed return was never received by the IRS, which
means it failed to satisfy Treasury Regulation § 301.7502-
1(c)(1)(iii)(B)(1)(ii). 12
Treasury Regulation § 301.7502-1(c)(1)(iii)(B)(2) has four
requirements. First, Zaimes’s return had to be received by the IRS. See
Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(2) (“If a document . . . described in
paragraph (c)(1)(iii)(B)(1) is received after the time when a document
. . . would ordinarily be received . . .”). Second, the return had to be
mailed before the last collection of mail on October 17, 2016. See id.subdiv. (iii)(B)(2)(i). Third, the delay in the IRS’s receiving the return
had to be due to a delay in the transmission of the mail. See id. subdiv.
(iii)(B)(2)(ii). Fourth, the cause of the return’s mailing delay had to be
established. See id. subdiv. (iii)(B)(2)(iii).
The first requirement was not met. As discussed supra, Zaimes’s
return was never received by the IRS. The second requirement also was
12 Zaimes’s brief does not assert that the IRS received the mailed return.
Zaimes contends that receipt by the IRS is not required because, in his view, Treasury
Regulation § 301.7502-1(c)(1)(iii)(B)(1)(ii) requires only that an envelope bearing a
privately metered postmark “be mailed the same way a USPS postmarked envelope
would be” and “be sent by the same class of mail as it would be if it had a USPS
postmark.” By contrast, the IRS contends that the regulatory requirement is that “the
non-USPS postmarked document was actually received by [the IRS] by the time that
an otherwise identical USPS postmarked document would ordinarily be received.” The
IRS’s view is correct because it reflects the plain language of Treasury Regulation
§ 301.7502-1(c)(1)(iii)(B)(1)(ii).
24
[*24] not met. Zaimes did not present any evidence showing that his
return was mailed before the last collection of mail on October 17, 2016.
See id. subdiv. (iii)(B)(2)(i). Therefore, Zaimes’s return failed to satisfy
the requirements of Treasury Regulation § 301.7502-1(c)(1)(iii)(B)(2).
In sum, Zaimes has failed to prove he timely filed his 2015 return.
We now will turn to whether Zaimes had reasonable cause for failing to
timely file his return.
B. Zaimes did not have reasonable cause for failing to timely
file his 2015 return.
Zaimes argues he had four reasons for failing to file on time. As
explained below, we reject all four of Zaimes’s arguments. Thus, Zaimes
is liable for the addition to tax under section 6651(a)(1).
1. The IRS’s instructions for filing Form 1040 were not
reasonable cause for Zaimes’s failure to file his 2015
return on time.
Zaimes contends that he had reasonable cause for failing to timely
file his return because the IRS’s instructions for filing Form 1040 do not
expressly state that a return must be sent by registered or certified mail
or that taxpayers bear the risk of nondelivery when they try to file their
returns by regular mail. Zaimes’s testimony at trial on whether he saw
the instructions before mailing his return was equivocal, 13 and we find
that he did not see or rely on the instructions when he mailed his return.
Therefore, the instructions did not cause his failure to timely file his
return.
2. The lack of notice from the IRS until December 4, 2017,
was not reasonable cause.
Zaimes argues that he had reasonable cause for failing to timely
file his return on October 17, 2016, because the IRS did not notify him
until December 4, 2017, the date it processed his e-filed return, that his
2015 return had been filed late. Zaimes’s argument is based on the
13 When asked by the Court whether he had seen the instructions before
mailing his return, Zaimes testified: “I don’t have a specific recollection of seeing this
document your Honor.” Later, Zaimes further testified: “And while I can’t say that I
saw [the instructions] in 2015 . . . . I must have seen [the instructions] in an IRS
publication somewhere.” Thus, at two different points in his testimony, Zaimes failed
to definitively answer whether he saw the instructions before mailing his return.
25
[*25] premise that his April 15, 2016, extension request placed the IRS
on notice that he would file a tax return on or before the extended
deadline of October 17, 2016, and that it was reasonable for him to
expect the IRS to notify him when that extended filing deadline passed
without its receiving the return.
The IRS’s actions or inactions after October 17, 2016, did not
cause Zaimes’s failure to timely file his return on or before October 17,
2016. We therefore hold that the IRS’s failure to notify Zaimes that it
did not receive his return until after the October 17, 2016, deadline
passed was not reasonable cause for his failing to timely file the return.
3. The conversations with Izykowski were not reasonable
cause.
Zaimes next argues that he had reasonable cause because of his
conversations with Izykowski before mailing his return. Relying on legal
advice from a tax professional on the taxpayer’s filing obligations can be
reasonable cause for the taxpayer’s failure to timely file. See United
States v. Boyle, 469 U.S. 241, 251 (1985); Grecian Magnesite Mining,
Indus. & Shipping Co. v. Commissioner, 149 T.C. 63, 94 (2017), aff’d,
926 F.3d 819 (D.C. Cir. 2019). However, a tax professional’s failure to
give advice (i.e., the lack of advice) is not reasonable cause. See N.Y.
State Ass’n of Real Est. Bds. Grp. Ins. Fund v. Commissioner, 54 T.C.
1325, 1336 (1970) (“A taxpayer is not relieved from the legal obligation
to file, and the additions to tax for failing to fulfill that obligation merely
because [he] was not offered unsolicited advice.”).
Zaimes testified that “at no time prior to October 17, 2016, had
. . . [Izykowski] told me, recommended to me, or even suggested to me
that I send my tax return by certified mail or registered mail.” But the
fact that Izykowski did not advise Zaimes that he could file his return
by registered or certified mail did not give him reasonable cause. See id.In addition to the testimony discussed above, when asked during
cross-examination whether Izykowski advised him that he was required
to send his return by regular mail, Zaimes responded: “No, but she
suggested I do that. She did not offer electronic filing, and she said that
the reason for that was because the tax return was so voluminous it
made better sense to mail it.” On brief Zaimes contends that this
testimony proved that Izykowski had advised him that mailing his
return by regular mail was “sufficient.” But sufficient for what purpose?
Here, we have only Zaimes’s recollection of what Izykowski advised him.
26
[*26] There was no written record of the advice, and Izykowski did not
testify. Under these circumstances, we do not conclude that Izykowski
advised Zaimes that a regular mailing was sufficient to avoid the risk
that the return would not be delivered to the IRS.
To evaluate why Zaimes’s return was not timely filed, we also
consider why the return was not e-filed. Had Izykowski e-filed the
return, the risk of nondelivery through the mails would have been
avoided. Furthermore, e-filing would have imposed no time cost on
Zaimes. Zaimes’s cross-examination testimony claims that Izykowski
advised against e-filing because of the size of the return. We are not
persuaded this is true. See Tokarski v. Commissioner, 87 T.C. 74, 77
(1986) (“[W]e are not required to accept the self-serving testimony of [a
taxpayer] . . . as gospel.”). If Izykowski thought Zaimes’s 2015 return
was too big to e-file, it is unclear why Izykowski e-filed the same return
(with only a minor adjustment, see supra note 5) in November 2017. We
therefore conclude that Izykowski did not advise against e-filing the
return that Zaimes mailed to the IRS.
Therefore, for the reasons mentioned above, Zaimes’s
conversations with Izykowski were not reasonable cause.
4. Nondelivery of his mailed return was not reasonable
cause.
Finally, Zaimes argues that he had reasonable cause for failing to
timely file his return because the USPS did not deliver his return. The
USPS’s losing a taxpayer’s return in the mail can be reasonable cause
for the taxpayer’s failure to timely file a return. See, e.g., Ferguson v.
Commissioner, 14 T.C. 846, 850 (1950). However, Zaimes failed to prove
that (1) he correctly addressed the envelope in which he mailed his
return or (2) he placed sufficient postage on the envelope. See supra
OPINION, Part I.A.2 and 3. Zaimes has failed to prove that the lack of
delivery was caused by the USPS’s error and not his own. Therefore, the
nondelivery of his return was not reasonable cause.
In sum, Zaimes failed to prove that he timely filed his return or
that he had reasonable cause for his failure to timely file his return. The
IRS did not receive a return from Zaimes until November 13, 2017,
which was more than a year after the October 17, 2016, due date. See
§ 6651(a)(1). The IRS correctly assessed the maximum addition to tax
allowed under section 6651(a)(1). We therefore sustain in full the Office
27
[*27] of Appeals’ determination that Zaimes is liable for the section
6651(a)(1) addition to tax.
II. Zaimes is liable for the section 6651(a)(2) addition to tax for
failing to timely pay the amount shown as tax on his 2015 return.
We next address whether Zaimes is liable for the addition to tax
under section 6651(a)(2) for failing to timely pay the amount shown as
tax on his return. Section 6651(a)(2) provides:
In case of failure . . . to pay the amount shown as tax on
any return . . . on or before the date prescribed for payment
of such tax (determined with regard to any extension of
time for payment), 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 shown as tax on such
return 0.5 percent of the amount of such tax if the failure
is for not more than 1 month, with an additional 0.5 percent
for each additional month or fraction thereof during which
such failure continues, not exceeding 25 percent in the
aggregate . . . .
Section 6651(a)(2) does not specifically address whether
reasonable cause for the taxpayer’s failure to pay by the start of an
additional month can excuse the 0.5% incremental addition to tax for
the taxpayer’s failure to pay during that month. For example, could
Zaimes’s attempt to pay a portion of his unpaid tax liability on October
17, 2016, serve as reasonable cause for his failure to pay that portion on
November 15, 2016, so as to absolve him of the 0.5% incremental
addition to tax for failing to pay that portion for the “additional month”
of November 15 to December 15, 2016? Under two regulatory provisions
related to section 6651(a)(2), reasonable cause for a taxpayer’s failure to
pay by the start of an additional month does not excuse the taxpayer
from the 0.5% incremental addition to tax. 14 Caselaw agrees that section
14 First, Treasury Regulation § 301.6651-1(a)(2) provides:
In case of failure to pay the amount shown as tax on any return . . . on
or before the date prescribed for payment of such tax (determined with
regard to any extension of time for payment), there shall be added to
the tax shown on the return the amount specified below unless the
failure to pay the tax within the prescribed time is shown . . . to be due
to reasonable cause and not to willful neglect.
28
[*28] 6651(a)(2) should be interpreted so. See Estate of Hartsell v.
Commissioner, T.C. Memo. 2004-211, 2004 WL 2094750, at *3 (“The
reasonable cause standard is a one-time test to be passed or failed at the
payment due date.”); Indus. Indem. v. Snyder, 41 B.R. 882, 883 (E.D.
Wash. 1984) (“[T]he ‘reasonable cause’ standard is . . . a one-time test to
be passed or failed at the tax due date . . . .”); Photographic Assistance
Corp. v. United States, No. 97-cv-3561, 1998 WL 786218, at *2 (N.D. Ga.
Oct. 6, 1998) (“[The taxpayer’s] failure to offer any explanation for its
failure to pay its taxes when they were due in 1987 and 1988 prevents
any finding of reasonable cause under § 6651(a)(2).”).
Section 6651(b)(2) provides that “[f]or purposes of . . . [section
6651(a)(2)], the amount of tax shown on the return shall, for purposes of
computing the addition for any month, be reduced by the amount of any
part of the tax which is paid on or before the beginning of such month
and by the amount of any credit against the tax which may be claimed
on the return.”
The IRS calculated the addition to tax by assuming that the tax
shown on the return was $185,615 and by making section 6651(b)(2)
reductions for (1) the $40,000 payment made on February 1, 2016, a
reduction that began with the month beginning on April 18, 2016, (2) the
$38,000 payment made on April 15, 2016, a reduction that began with
the month beginning on April 18, 2016, and (3) the $100,000 payment
made on March 15, 2018, a reduction that began with the month
beginning on March 15, 2018. Zaimes does not dispute the correctness
of this calculation except that he argues that his failure to timely pay
was due to reasonable cause and not willful neglect.
Zaimes’s payment for his 2015 tax liability was due April 18,
2016. See § 6151(a) (“[W]hen a return of tax is required under this title
or regulations, the person required to make such return . . . shall pay
such tax at the time and place fixed for filing the return (determined
without regard to any extension of time for filing the return).”); Treas.
Reg. § 1.6081-4(c) (providing that the “automatic extension of time for
Second, Treasury Regulation § 301.6651-1(c)(1) provides:
A failure to pay will be considered to be due to reasonable cause to the
extent that the taxpayer has made a satisfactory showing that he
exercised ordinary business care and prudence in providing for
payment of his tax liability and was nevertheless either unable to pay
the tax or would suffer an undue hardship (as described in § 1.6161-
1(b) of this chapter) if he paid on the due date.
29
[*29] filing a return . . . will not extend the time for payment of any tax
due on such return”); supra OPINION, p. 11 (explaining that individual
taxpayers had until April 18, 2016, to timely file their 2015 returns if
they did not receive an extension). Therefore, Zaimes must prove he had
reasonable cause for failing to timely pay on April 18, 2016. 15 The
amount that Zaimes was required to pay on April 18, 2016, was
$110,693, equal to the $185,615 of tax shown on the e-filed return, minus
(1) the $40,000 payment made on February 1, 2016, and (2) the $38,000
payment made on April 15, 2016.
Zaimes’s argument is that he had reasonable cause for not
making the payment because he “mailed his . . . partial payment check
on October 17, 2016.” However, even assuming arguendo that placing a
payment in the mail can constitute reasonable cause for failing to make
the payment, we conclude that Zaimes did not have reasonable cause for
two reasons. First, there must be reasonable cause for not making the
entire payment. See United States v. Sanford (In re Sanford), 979 F.2d
1511, 1513–14 (11th Cir. 1992). Zaimes’s argument is that he had
reasonable cause for not paying $58,145 (the amount of his October 17,
2016, check), but the entire amount of tax shown as due on the return
(after section 6651(b)(2) adjustments) was $110,693. Second, Zaimes’s
payment was due April 18, 2016. The fact that Zaimes mailed a check
on October 17, 2016, does not explain why he did not pay the tax shown
on the return (after section 6651(b)(2) adjustments) on or before April
18, 2016. We therefore conclude that Zaimes did not have reasonable
cause excusing his failure to timely pay the tax shown on the return
(after section 6651(b)(2) adjustments).
Treasury Regulation § 301.6651-1(c)(1) provides that reasonable
cause excusing the failure to timely pay exists if the taxpayer “would
suffer an undue hardship (as described in § 1.6161-1(b)) if he paid on the
due date.” Zaimes does not argue that he would have suffered an undue
hardship if he paid the tax shown on the return (after section 6651(b)(2)
adjustments) on the due date. We will not make the argument on his
behalf. See Feigh v. Commissioner, 152 T.C. 267, 277 (2019) (“Our job is
to consider the issues advanced by the parties, not to craft alternative
arguments never raised.”).
15 The addition to tax for failing to timely pay the tax shown on a return is not
imposed if “it is shown that such failure is due to reasonable cause and not due to
willful neglect.” § 6651(a)(2). Because we hold that Zaimes did not have reasonable
cause for his failure to timely pay, we need not determine whether his failure was due
to willful neglect.
30
[*30] Zaimes conceded that he did not pay the tax shown on his 2015
return by its due date of April 18, 2016. He also failed to prove that he
had reasonable cause for failing to do so. Therefore, Zaimes is fully liable
for the section 6651(a)(2) addition to tax as determined by the IRS.
III. Conclusion
For all the aforementioned reasons, we sustain in full the Office
of Appeals’ determination.
In reaching our holdings herein, we have considered all
arguments made, and, to the extent not mentioned above, we find them
to be moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered for respondent.