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Can Tax Court Remove Your Late-Filing Penalty? The IRC 6651 Guide

The IRS added late-filing and late-payment penalties. Which part the Tax Court can remove, who must prove what, and how reasonable cause is really won.

Liam Williams

Liam Williams

— 43 min read
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Somewhere below the deficiency (the extra tax the IRS says you owe) on your notice there is a line that reads "Addition to tax, IRC § 6651(a)(1)"—and, if the IRS prepared a return for you, a second line for § 6651(a)(2) that may just say "to be determined." The numbers are not small. The failure-to-file addition alone runs to 25% of the tax, and the two additions together can reach 47.5%.

Here is the part the notice does not explain, and that most articles about "penalty abatement" never reach: the Tax Court can remove some of this, but not all of it, and which part depends on how the penalty got onto your account. In a plain late-filed-return case, the late-payment penalty is generally not in the case at all, and only part of the late-filing penalty is. In a substitute-for-return case, all of it is.

This guide is the litigation-stage companion to How To Request IRS Penalty Abatement, which covers the request you make to the IRS: the reasonable-cause letter, Form 843, First Time Abate. This one covers the United States Tax Court: what the court can decide, who must prove what, how reasonable cause is won and lost in decided cases, and how to check the IRS's arithmetic.

It is not a niche problem. The National Taxpayer Advocate's 2025 Annual Report to Congress lists additions to tax under §§ 6651, 6654 and 6655 as the fifth most frequent issue in Tax Court opinions for individual taxpayers in FY2025, with 17 opinions. The IRS's FY2025 Data Book, Table 4-2 counts 4,009,691 failure-to-file penalties (its row label is "Delinquency") and 24,251,980 failure-to-pay penalties assessed in the individual (and estate and trust) income tax category in a single year. The same table records 437,374 failure-to-file and 3,149,546 failure-to-pay penalties abated that year. Around 89% of Tax Court petitioners represent themselves, and most of the opinions cited below were decided for, or against, someone who did.

The Two Penalties and How They Stack

Both additions live in IRC Section 6651. (The Code calls them "additions to tax"; the IRS's own pages call them penalties. This guide uses both words for the same thing.) Each applies "unless it is shown that such failure is due to reasonable cause and not due to willful neglect"—the exception the rest of this article is about.

Failure To File: Section 6651(a)(1)

If a return is filed after its due date, counting any extension, the addition is "5 percent of the amount of such tax if the failure is for not more 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." It hits the 25% cap after five months.

The base is the tax required to be shown on the return—the correct tax, including any deficiency the IRS later finds—reduced under § 6651(b)(1) by withholding, estimated payments, credits, and anything else paid by the due date. A refund return has no base and no penalty.

The 60-day minimum. If the return is more than 60 days late, the addition "shall not be less than the lesser of $435 or 100 percent of the amount required to be shown as tax on such return." That $435 is inflation-indexed under § 6651(j): it is $525 for returns required to be filed in 2026 (Rev. Proc. 2024-40, § 2.53) and $510 for returns due in 2025. The IRS's failure-to-file penalty page carries the year-by-year table. The minimum bites when the net tax due is small.

Failure To Pay: Section 6651(a)(2) and (a)(3)

Section 6651(a)(2) applies when the tax shown on a return is not paid by the payment due date. The rate is "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," to the same 25% cap. At half a percent a month, the cap arrives after 50 months, so this addition keeps growing for more than four years.

Note the base: the failure-to-pay addition runs on the tax shown on the return, not the correct tax, reduced month by month under § 6651(b)(2) as payments come in.

Section 6651(a)(3) is the failure-to-pay addition for tax that was not shown on a return—a deficiency. It starts only if the amount is not paid "within 21 calendar days from the date of notice and demand therefor (10 business days if the amount for which such notice and demand is made equals or exceeds $100,000)". It attaches to your deficiency after the Tax Court case ends and the IRS sends its bill, so it is never part of the case itself; What Happens After Your Tax Court Decision covers that stage.

An extension of time to file is not an extension of time to pay. The IRS's failure-to-pay penalty page puts it in one line: "This does not grant you an extension of time to pay." A filing extension moves the failure-to-file clock to October; the failure-to-pay clock starts in April regardless. The one safe harbor, in Treas. Reg. § 301.6651-1(c)(3) and IRM 20.1.2.2.3.1, presumes reasonable cause for the failure to pay during a valid extension period if "at least 90 percent of the amount of tax shown on the return must have been paid on or before the due date for payment, and the remainder must be paid with the return." (This guide cites the Internal Revenue Manual, the IRM, often. It is the IRS's staff handbook, which IRM 1.11.2.2 describes as "the primary, official compilation of instructions to staff that relate to the administration and operation of the IRS"; it is not a statute or a regulation, but it shows what IRS employees are instructed to look for, which is why it is quoted here alongside the cases.)

The Offset, the Caps, and the Rate Changes

When both additions run for the same month, § 6651(c)(1) says the failure-to-file addition "shall be reduced by the amount of the addition under paragraph (2) of subsection (a) for any month (or fraction thereof) to which an addition to tax applies under both paragraphs (1) and (2)."

So in the ordinary case the combined rate for the first five months is 5% a month, not 5.5%: 4.5% failure-to-file plus 0.5% failure-to-pay. After five months the failure-to-file addition is 22.5% and stops; the failure-to-pay addition keeps running to its own 25%. Combined ceiling: 47.5% of the net tax. The offset cannot take the failure-to-file addition below the 60-day minimum.

Two rate changes are easy to miss on a transcript:

  • 1% after a levy notice. Under § 6651(d), once the IRS has sent its notice of intent to levy under IRC Section 6331(d) and ten more days pass, the failure-to-pay rate doubles for later months; the IRS's failure-to-pay page confirms "the failure to pay penalty is 1% per month or partial month." The higher rate reaches the 25% cap sooner; it does not raise it.
  • 0.25% per month during an installment agreement, but only for timely filers. Section 6651(h) cuts the failure-to-pay rate to a quarter of a percent while an installment agreement is in effect, but only "In the case of an individual who files a return of tax on or before the due date for the return (including extensions)". A late filer pays the full rate even on a payment plan.

Two boundaries close out the map. Section 6651(e) says the section "shall not apply to any failure to pay any estimated tax required to be paid by section 6654 or 6655"; underpaid estimates belong to the estimated-tax addition. And § 6651(f) triples the failure-to-file rates when the failure is fraudulent; that gets its own section below.

Which Part Is Actually Before the Tax Court

The rule is IRC Section 6665(b). Additions to tax are normally assessed and collected like tax, but deficiency procedures do not apply to § 6651 additions, except "to that portion of such addition which is attributable to a deficiency in tax described in section 6211." Your ticket into the Tax Court is the notice of deficiency, the "90-day letter" proposing extra tax. The court's jurisdiction is exactly as wide as that notice, so only that "portion" is before it. You do not have to pay first to get there: under IRC Section 6213(a) the IRS may not assess or collect the deficiency during the 90 days, nor, "if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final". How IRC § 6213 Protects You While Your Tax Court Case Is Pending covers that protection.

In Byers v. Commissioner, T.C. Memo. 2019-76, a pro se collection case, the court explained the mechanics: because deficiency procedures do not apply, "these additions to tax are summarily assessed"—the IRS simply puts them on your account when the late return posts, with no notice of deficiency and no right to petition. The court's footnote states the exception: "However, deficiency procedures apply to the portion of a sec. 6651 penalty which is attributable to a deficiency." IRM 20.1.2.3.6 says the same from the IRS's side.

The IRM's $1,050 Example

IRM 20.1.1.4.2 gives the cleanest illustration. A taxpayer files one month late showing $4,000 of tax. The IRS later finds a $1,000 deficiency, so the correct tax was $5,000 and the total failure-to-file addition is $250 (5% of $5,000). In the IRM's words: "If the taxpayer contests the deficiency, a notice of deficiency must be issued for $1,050 ($1,000 tax deficiency and $50 FTF addition to tax (5 percent of $1,000)." And: "The remaining $200 failure to file addition to tax which was attributable to the original tax assessment is not part of the deficiency and is collectible by immediate assessment."

Translate that to your own notice. If you filed a late return and the IRS then audited it, the failure-to-file addition on the tax you reported was assessed when your return posted (transcript code 166) and is not in your Tax Court case. Only the failure-to-file addition on the extra tax the IRS found is. The failure-to-pay addition under (a)(2) runs on tax you showed, so it is never attributable to a deficiency—which is why, for someone who filed his own late return, the notice usually lists no (a)(2) addition at all. Byers shows the practical sting: the failure-to-pay addition "has accrued" on the account even when it was not part of the assessment being litigated. Expect it to appear later.

The SFR Exception: Everything Is in the Notice

Now the big exception, and the reason almost every Tax Court opinion about § 6651 is a non-filer case. If you filed no return and the IRS prepared a substitute for return (an SFR) for you under IRC Section 6020(b), the entire tax is a deficiency, so the whole failure-to-file addition is in the notice. Section 6651(g) says the substitute "shall be disregarded for purposes of determining the amount of the addition under paragraph (1) of subsection (a), but" is treated as your return for the failure-to-pay addition, so an (a)(2) addition rides in too, computed on the SFR as the "return" (notices often list it as "to be determined"). And because no return was filed, § 6665(b)(2) brings the § 6654 estimated-tax addition into the notice as well. Non-filer notices also reach back further than audits of filed returns: under IRC Section 6501(c)(3), where no return was filed, "the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time." Understanding IRS Statutes of Limitations covers the limits that do apply.

In an SFR case, then, the Tax Court can redetermine all three. The SFR rules themselves—what makes a valid § 6020(b) return, the zero-return cases, the 47.5% combined cap—are covered in The IRS Filed Your Return? Why It's Too High.

Where the Rest Can Be Fought

The summarily assessed part is not beyond challenge; it just cannot be challenged in a deficiency case. Three routes exist:

  1. An abatement request to the IRS, by letter or Form 843, with an Appeals conference if it is denied. That is the request-stage process in How To Request IRS Penalty Abatement. If you have already paid the addition, the request doubles as a refund claim, and IRC Section 6511(a) sets the window: "3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later".
  2. A collection due process case. If the IRS moves to lien or levy and you request a CDP hearing within 30 days, you can challenge the additions there if you had no earlier chance to dispute them, and the Tax Court then reviews the question fresh. In Remisovsky v. Commissioner, T.C. Memo. 2022-89, a couple who represented themselves raised reasonable cause at the hearing, and the court said: "We thus review de novo petitioners' challenge to this portion of their 2013 liability." Casement v. Commissioner, T.C. Memo. 2024-68, another pro se CDP case, applied the same standard. (Both lost on the merits, for reasons covered below, but the door was open.)
  3. A refund suit after paying. Pay the addition, claim a refund, and sue in district court or the Court of Federal Claims. That is where the Supreme Court's decision in United States v. Boyle, 469 U.S. 241 (1985) and the two e-filing cases discussed below arose. Two deadlines gate this route. IRC Section 7422(a) bars any refund suit "until a claim for refund or credit has been duly filed" with the IRS, and under IRC Section 6532(a) the suit cannot begin until six months have passed without an IRS decision (or the claim is denied sooner), and cannot begin more than two years after the IRS mails its notice of disallowance.

Who Has To Prove What

The general rules are in Burden of Proof in Tax Court. Here is how they apply to § 6651, where the details decide cases.

Start with IRC Section 7491(c): "the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title." The foundational case is itself a § 6651(a)(1) case, brought by a couple who represented themselves over a $2,669 failure-to-file addition: Higbee v. Commissioner, 116 T.C. 438 (2001). The court held that the "Commissioner must come forward with sufficient evidence indicating that it is appropriate to impose the relevant penalty." But it drew the line in the same breath: "the Commissioner need not introduce evidence regarding reasonable cause, substantial authority, or similar provisions." Reasonable cause is your burden. In plain terms: the IRS must put evidence on the table first, showing the return was late or the tax unpaid; then it is on you to persuade the judge that you had reasonable cause.

Current opinions state the two-step in one sentence. Chapin v. Commissioner, T.C. Memo. 2026-76, decided August 27, 2026: once "respondent meets the burden of production under section 7491(c), petitioners bear the burden of proving the additions to tax do not apply because of reasonable cause or other exculpatory factors." Tax Court Rule 142(a) is the default: "The burden of proof shall be upon the petitioner, except as otherwise provided by statute or determined by the Court".

What the IRS Must Produce

The IRS's burden of production is real, and it is different for each addition.

For failure to file, (a)(1): proof the return was not filed on time. Certified account transcripts do it. In Dieffenbach v. Commissioner, T.C. Memo. 2026-67, decided in August 2026 against a self-represented petitioner (a licensed attorney), the IRS produced account transcripts showing no timely returns, and the court said: "This was sufficient to satisfy respondent's burden of production."

If you did file on time and the IRS's record says otherwise, the rebuttal is the postmark rule in IRC Section 7502. For a return delivered after its due date, "the date of the United States postmark stamped on the cover" is "deemed to be the date of delivery"; for registered mail, the registration "shall be prima facie evidence" of delivery and "the date of registration shall be deemed the postmark date", and § 7502(c)(2) extends that treatment by regulation to certified mail. A certified-mail receipt showing a timely date defeats the (a)(1) addition with no reasonable-cause showing at all. Keep it with your copy of the return.

For failure to pay, (a)(2): proof that tax was shown on a return. For a non-filer that means proof of a substitute for return that actually meets § 6020(b). The leading case is Wheeler v. Commissioner, 127 T.C. 200 (2006), a pro se case holding that "the Commissioner must introduce evidence that an SFR satisfying the requirements of section 6020(b) was made". The IRS lost the (a)(2) addition because "The only evidence regarding the SFR is a cryptic and summary reference to a" substitute-for-return line on a Form 4340; it lost the § 6654 addition too, for want of evidence about the prior year's return. The (a)(1) addition stood. Three years earlier, in Cabirac v. Commissioner, 120 T.C. 163 (2003), the court had refused the (a)(2) addition because "the unsubscribed substitutes for return showing zero taxes do not meet the requirements for a sec. 6020(b), I.R.C., return".

Dieffenbach shows what happens when the IRS gets this right: certified SFRs for three years satisfied the burden, while for a fourth year no SFR was offered and no (a)(2) addition had been determined. The practical point: at the stipulation stage, read what the IRS attorney asks you to agree to. A stipulation that a valid SFR was prepared hands the IRS its burden on (a)(2) for free.

The Pleading Trap: No Assignment of Error, No Burden

Section 7491(c) helps only if the addition is actually in dispute, and in the Tax Court that is decided by your petition. An assignment of error is a numbered paragraph in the petition saying what the IRS got wrong; Rule 34(b)(1)(G) requires "clear and concise assignments of each and every error ... that the petitioner alleges the Commissioner made in the determination of the deficiency or liability. Any issue not raised in the assignments of error will be deemed conceded."

Two pro se cases show how this plays out. In Swain v. Commissioner, 118 T.C. 358 (2002), an accuracy-penalty case whose rule is general, the petitioner's assignments of error were struck as frivolous, and the court held that the IRS's burden of production "is of no consequence if P's assignments of error have been struck." In Funk v. Commissioner, 123 T.C. 213 (2004), a § 6651(a)(1) case dismissed on the pleadings, the court held: "Because the petition and amended petition fail to state a justiciable claim for relief, R is not obliged to produce evidence in support of the addition to tax determined by R in the notice of deficiency."

Timing matters as much as content. In O'Connor v. Commissioner, T.C. Memo. 2025-42, the petitioner (a tax lawyer representing himself) raised reasonable cause "for the first time on brief"—after the trial—and lost the additions. A defense that first appears in a post-trial brief has no evidence behind it.

What Your Petition Should Say

A petition that survives Swain and Funk and sets up the IRS's burden does two things, whether you use Form 2 from the Petition Kit or a typed petition (How To File Your Tax Court Petition has the mechanics):

  • A separate lettered assignment of error for each addition, alongside the ones for the tax itself. For example: "(c) The Commissioner erred in determining that petitioner is liable for the addition to tax under section 6651(a)(1) for 2023." and "(d) The Commissioner erred in determining that petitioner is liable for the addition to tax under section 6651(a)(2) for 2023." If the notice lists § 6654 too, give it its own letter.
  • A separate fact paragraph stating why, in specifics: the dates you were hospitalized, the extension you filed, the payment you made, the preparer who confirmed the return had been e-filed. The petition is not the place to prove it; it is the place to put it in issue so that your evidence belongs at trial.

Then hold the IRS to its burden. If the IRS attorney cannot produce a transcript, or produces no SFR for a year with an (a)(2) addition, say so in your pretrial memorandum and at trial.

Reasonable Cause: The Real Test

The statute's exception has two elements, and you must prove both. As Jones v. Commissioner, T.C. Memo. 2006-176, a pro se case, put it: "a taxpayer must establish both that failure to timely file was not due to willful neglect and that it was due to reasonable cause."

The Regulation's Two Branches

Treas. Reg. § 301.6651-1(c)(1) defines reasonable cause differently for the two failures, and the difference drives the outcomes in the next section.

Filing: "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". The word is unable. Inconvenience, confusion and cash-flow trouble are not inability to file.

Paying: a failure to pay is excused to the extent the taxpayer "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." The regulation weighs the whole financial picture, including what you spent against the income you could reasonably expect before the payment date, and gives a negative example: "a taxpayer who incurs lavish or extravagant living expenses" has not exercised ordinary business care, and neither has "a taxpayer who invests funds in speculative or illiquid assets" unless enough was left to pay the tax. Treas. Reg. § 1.6161-1(b) sets the hardship bar: undue hardship "means more than an inconvenience to the taxpayer. It must appear that substantial financial loss, for example, loss due to the sale of property at a sacrifice price, will result".

So inability to pay is a defense to the failure-to-pay addition only. There is no "couldn't afford it" branch for failing to file.

The court's current one-sentence version of the whole test, from Branch v. Commissioner, T.C. Memo. 2026-51: reasonable cause "requires showing that, despite exercising ordinary business care and prudence, the taxpayer was unable to file the return or pay the tax, as applicable, on time, typically for reasons outside the taxpayer's control".

Boyle's Bright Line

Every § 6651 case runs through United States v. Boyle, 469 U.S. 241 (1985). An estate's executor relied on his attorney to file the estate tax return; the attorney missed the deadline; the executor sued for a refund of the late-filing addition. The Supreme Court ruled for the government.

Chief Justice Burger's opinion defined willful neglect—the term "may be read as meaning a conscious, intentional failure or reckless indifference"—and then drew the line that has governed ever since: "It requires no special training or effort to ascertain a deadline and make sure that it is met." The Court accepted the harshness: "Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish necessary results." And on relying on someone else to file: "one does not have to be a tax expert to know that tax returns have fixed filing dates and that taxes must be paid when they are due. In short, tax returns imply deadlines. Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute."

The holding: the duty to find out the deadline and meet it is yours and cannot be delegated. Hiring a professional to file, and trusting it was done, is not reasonable cause for a late filing.

What Boyle Left Open

Three things, and each matters to a real defense.

Substantive advice. The Court itself distinguished advice about the law from the mechanical act of filing: "When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are not competent to discern error in the substantive advice of an accountant or attorney." If a professional told you, on your facts, that no return was required, that reliance can be reasonable cause; if a professional told you the return was "taken care of," it cannot.

Disability. In footnote 6, the majority reserved the case of a taxpayer who was incapable by objective standards of exercising ordinary business care, and said that in such a case "the disability alone could well be an acceptable excuse for a late filing"—but that Boyle was not that case. The illness cases in the next section are the Tax Court's working-out of that footnote.

E-filing. Boyle was decided in 1985, on a paper return. Whether the rule applies when you authorized a preparer to e-file and the return never went through has been litigated only recently, only in refund suits, and, so far as we have found, not yet in a Tax Court opinion. Those cases are covered below.

Section 6651 Is Not Section 6664(c)

If you have read about beating the accuracy-related penalty by showing you relied on a professional, be careful: that is a different statute with a different test. IRC Section 6664(c) excuses the accuracy penalty for "reasonable cause" and "good faith" in figuring the right tax, and reliance on a competent adviser about what to report can satisfy it. Section 6651's test is the regulation's ordinary-business-care standard and Boyle's bright line on deadlines. IRM 20.1.1.3.3.4.3 draws the same distinction: "The taxpayer's responsibility to file, pay, or deposit taxes generally cannot be excused by reliance on the advice of a tax advisor." The accuracy-penalty defense is covered in How To Fight the IRS Accuracy-Related Penalty in Tax Court.

How People Win and Lose

Here is the case law by fact pattern, with at least one winner and one loser for the patterns pro se petitioners actually raise. One label first: a summary opinion comes from a small tax case and, under IRC Section 7463(b), is not precedent and cannot be cited as such. Two of the cases below are summary opinions, included to show how judges react to facts, not as authority.

Illness and Incapacity

The test. Jones states it: "we have looked to the severity of the disability and the impact it had on the taxpayer's life". Remisovsky, quoting earlier decisions, adds the two halves that decide most of these cases: the taxpayer "must show that she was incapacitated to such a degree that she could not file her returns", and illness "generally does not prevent the taxpayer from filing returns where the taxpayer is able to continue his business affairs despite the illness or incapacity."

The winner: Meyer v. Commissioner, T.C. Memo. 2003-12 (pro se). Mr. Meyer did not file for three years. During those years, the court found, "initially he was diagnosed with HIV; later he was diagnosed with AIDS"; he "also suffered a nervous breakdown and had to take a leave of absence from his job." The court held that his "failure to file for the years in issue and failure to pay for 1996 were due to reasonable cause and not willful neglect," and removed both the (a)(1) and (a)(2) additions (the § 6654 addition fell under that section's own exception on the same facts). The fact that separates Meyer from the losers below: he could not keep working.

The partial winner: Humes v. Commissioner, T.C. Summary Opinion 2009-100 (pro se, small case, non-precedential). A self-employed physician was hospitalized "for a month both times," in December 2003 and August 2004, for emotional and related physical problems; she stopped working in August 2004 and lost her home to foreclosure. The court "holds that petitioner has established a reasonable cause defense for the 2003 section 6651(a)(1) addition to tax," and, finding her testimony credible, for the 2003 failure-to-pay addition too. But the 2004 additions stood. On filing: "She provided no evidence that she was suffering from any illness or incapacity in April 2005"—the month the 2004 return was due. On paying: "petitioner provided no evidence of her income, assets, and other financial liabilities in 2005."

Two lessons in one opinion. The incapacity has to exist at the due date, not just during the tax year. And a hardship defense to the failure-to-pay addition needs financial evidence for the due-date period, not a general account of a bad year.

The loser: Remisovsky (represented themselves). A physician and his wife claimed alcoholism and depression excused a late 2013 return. Their evidence was a psychiatrist's letter written in 2019 that did not address early 2014, when the return was due, and the doctor's own admission that he was able to continue practicing medicine because he was "a binge drinker while active." The court: petitioners "were required to prove that petitioner husband suffered from these diseases at the relevant times and that his condition was so severe as to preclude timely filing and payment. Petitioners submitted no credible evidence on either point." (First Time Abate had been refused administratively because earlier-year additions were still on the account.)

The other loser: Grunsted v. Commissioner, T.C. Summary Opinion 2009-159 (pro se, small case, non-precedential). Job loss, a 40% pay cut, a father's death and undiagnosed depression. Asked what treatment he received for the depression, he answered: "Coffee". He "remained gainfully employed during 2004". The court applied the rule that "if a taxpayer is able to continue his/her business affairs despite an illness or incapacity," the incapacity does not establish reasonable cause.

What the evidence looks like. IRM 20.1.1.3.2.2.1 lists what the IRS looks for in an illness claim, and in substance it is what the court looks for too: "The dates, duration, and severity of illness."; "How the event prevented compliance."; "If other business obligations were impaired."; and whether "tax duties were attended to promptly when the illness passed". The IRM covers the taxpayer's own illness and that of immediate family ("spouse, sibling, parents, grandparents, children"). Contemporaneous medical records that cover the due date, plus evidence of what else you could not do that season, are what Meyer and Humes (for 2003) had and Remisovsky and Grunsted did not. Ask providers for records that show the dates of treatment, not a letter written today that summarizes the past; the 2019 letter in Remisovsky failed for exactly that reason. How To Prepare Your Evidence for Tax Court covers getting records into the trial record.

Relying on a Preparer To File, Including E-Filing

Boyle answers the paper-return version: reliance on someone else to file is not reasonable cause. The e-filing version has been decided by one court of appeals and left open by another. Neither was a Tax Court case; both were refund suits.

The published decision: Lee v. United States, No. 22-10793 (11th Cir. Oct. 24, 2023). Mr. Lee signed Form 8879 each year authorizing his CPA to e-file; the CPA never did. The Eleventh Circuit noted that "no circuit court has yet applied Boyle to e-filed tax returns," then did: "We must answer this open question and decide whether Boyle's bright line rule applies to e-filed returns. We believe it does." Signing Form 8879 is authorization, not filing.

The unpublished decision: Haynes v. United States, No. 17-50816 (5th Cir. Jan. 29, 2019). The CPA e-filed, the IRS system rejected the return, and no one noticed. The Fifth Circuit sent the case back for trial because of a fact dispute about the CPA's negligence, but said expressly that "we take no position on whether a taxpayer's reliance on a CPA to e-file a tax return, by itself, constitutes reasonable cause". Haynes is unpublished and not precedent even in the Fifth Circuit; it left the question open, and it is not a win for taxpayers.

The rule that follows: confirm the e-file acknowledgment yourself, and pull an account transcript a few weeks after filing to check that the return posted. Form 8879 proves you authorized a filing, not that one happened.

Advice Not To File vs. Advice To Delay

Boyle protects reliance on substantive advice that no return was due. The Tax Court polices that boundary closely.

In Sawyer v. Commissioner, T.C. Memo. 2026-33 (represented), the taxpayer faced an unusual reporting question (the insurance-policy income discussed in the hardship section below) and "attempted to clarify the proper reporting position by conferring with various tax attorneys. After receiving no clear answer, he did not file a tax return for 2015." He had wage income that required a return regardless. The court: "Mr. Sawyer did not receive advice telling him not to file a tax return, and he could not rely on such advice if he had received it. Accordingly, reasonable cause does not exist with respect to the failure to file." (He won on the failure-to-pay addition anyway, as the hardship section shows.)

In Branch (represented), the claimed advice was to hold off filing until audits of earlier years were finished. The adviser did not testify, the court was "skeptical of petitioner's allegations," and it quoted an earlier decision on why the argument fails even if true: "The alleged advice was to delay filing while audits for prior years were completed. Allowing such a basis for reasonable cause would make timely filing optional for any taxpayer under audit."

The lesson runs through this whole section: when the right answer is unclear, the return gets filed on the best information available and amended later. "Waiting until I knew" is not a defense.

"I Didn't Know I Had To File"

Jones: "In the absence of competent tax advice, a mistaken belief on the part of a taxpayer that no tax return was required under the statute generally will not support reasonable cause". IRM 20.1.1.3.2.2.6 is slightly softer: "The ordinary business care and prudence standard requires that taxpayers make reasonable efforts to determine their tax obligations." Ignorance of the law can support relief combined with other facts, such as your education, whether you had been subject to the tax or penalized before, and recent changes in the law. A first-year gig worker is in a different position from a professional who has filed for twenty years.

Written IRS Advice

If the IRS itself told you in writing that you did not need to file or pay, IRC Section 6404(f) requires abatement of any penalty "attributable to erroneous advice furnished to the taxpayer in writing by an officer or employee of the Internal Revenue Service", provided you reasonably relied on it, it answered a specific written request from you, and you gave the IRS accurate information. IRM 20.1.1.3.3.4.2 extends the relief "to include erroneous oral advice when appropriate", but then wants the question asked, the advice given, the office, the date, and "The name of the employee who provided the information." Without those details, "someone at the IRS told me" goes nowhere.

Missing Records

IRM 20.1.1.3.2.2.3 allows relief where records were unavailable for reasons beyond your control, but its factors include what you did to get them, whether you contacted the IRS, whether you complied promptly once you had them, and, pointedly, "Why the taxpayer did not estimate the information." That last factor is Boyle and Branch again: missing records rarely excuse a filing delay, because a return can be filed on estimates and amended.

Financial Hardship: A Defense to Failure To Pay Only

This is the pattern with the sharpest split between the two additions.

Not a defense to failure to file. IRM 20.1.1.3.3.3: "Undue hardship generally does not affect a person's ability to file and therefore would not provide a basis for penalty relief in a failure to file situation." Casement, quoting an earlier decision: "[F]inancial difficulties generally do not constitute reasonable cause for failure to file a return." Mr. Casement's only ground was that "he lost a lot of his income"; he offered no financial documents and lost on summary judgment, a ruling without a trial that the court can grant when the facts are not genuinely in dispute (Common Tax Court Motions and How To Respond explains how to answer one).

A defense to failure to pay, with evidence. The IRM again: "the mere inability to pay does not ordinarily provide the basis for granting penalty relief"; the taxpayer must also show ordinary business care in providing for the payment. In Casement's words: "Adverse economic conditions do not necessarily constitute reasonable cause for nonpayment of federal income tax, at least absent the serious effort required to pay timely."

The winner: Sawyer, decided April 2026. A lapsed life-insurance policy's loans were satisfied out of its cash value, "resulting in Mr. Sawyer's constructive receipt of income with no attendant cash." His wages that year were $35,687, with $6,379 withheld; his wages had previously been garnished for a trust fund recovery penalty; and "The deficiency determined by the Commissioner is $50,150, over 140% of Mr. Sawyer's wages." The court held that "he is liable for the section 6651(a)(1) failure-to-file addition to tax but not the section 6651(a)(2) failure-to-pay addition to tax." The $11,625 failure-to-pay addition in the notice fell away; the failure-to-file addition stood. The two additions are decided separately, on separate tests.

The loser: Chapin (represented). The petitioners pointed to a 2011 bankruptcy. The court: "Petitioners present no evidence or testimony as to the specifics of their financial hardship, nor do they explain how a bankruptcy discharge in 2011 affected their ability to pay tax due in 2014 and 2015." Quoting an earlier case, it described undue hardship as paying on time at "the risk of a substantial financial loss." The IRM adds that insolvency counts only "if the insolvency occurred before the tax payment due date."

The evidence lesson, from Humes. She won 2003 on credible testimony about foreclosure; she lost 2004 for lack of "evidence of her income, assets, and other financial liabilities in 2005." What the court needs is a financial picture as of the due date: bank statements, income, assets and debts for that month, and what you did to provide for the tax. If your real problem is that you cannot pay, read How To Resolve Your IRS Tax Debt and How To Request Currently Not Collectible Status; winning the penalty does not remove the tax.

If It Was a Joint Return

Signing a joint return makes both spouses liable for everything on it. IRC Section 6013(d)(3) provides that "the liability with respect to the tax shall be joint and several," and § 6665(a)(2) says that any reference in the Code to "tax" "shall be deemed also to refer to the additions to the tax, additional amounts, and penalties provided by this chapter." So the IRS can collect the whole late-filing addition from either spouse, and "my spouse handled the taxes" is a reliance-on-someone-else argument, which is Boyle's territory. The route around joint liability is innocent spouse relief under IRC Section 6015, which reaches "tax (including interest, penalties, and other amounts)" and can be raised in the deficiency case itself. See How To Request Innocent Spouse Relief and Innocent Spouse Relief in Tax Court: After the IRS Says No.

The "Kept Working" Rule

One pattern explains almost all of these cases. The physician in Remisovsky kept practicing and Mr. Grunsted "remained gainfully employed"; Mr. Meyer took a leave of absence and Ms. Humes stopped working. If you could run your life and your business during the period, the court will expect that you could have filed a return, or at least requested an extension. The winners could not.

Two Things You Can Skip

Two arguments that win other penalty cases do not work here, and one of them can cost you money.

Supervisory Approval Does Not Apply

The written-supervisory-approval requirement of IRC Section 6751(b)(1) knocks out accuracy and fraud penalties with some regularity. It does not reach § 6651. Section 6751(b)(2) says: "Paragraph (1) shall not apply to—(A) any addition to tax under section 6651, 6654, 6655, or 6662 (but only with respect to an addition to tax by reason of paragraph (9) or (10) of subsection (b) thereof); or (B) any other penalty automatically calculated through electronic means." Chapin confirms it in a footnote. A petition paragraph demanding proof of supervisory approval for a § 6651 addition wastes the paragraph. (For the penalties where it does work, see The Penalty Defense That Costs You Nothing: § 6751(b).)

Frivolous Arguments and the $25,000 Penalty

Five of the cases in this guide involved some version of "I was not required to file," meaning the tax laws do not apply to the petitioner. Every one of them lost the argument, and several were penalized or warned for making it. Under IRC Section 6673(a)(1), where a position "is frivolous or groundless," the Tax Court "may require the taxpayer to pay to the United States a penalty not in excess of $25,000." Mr. Cabirac was penalized $2,000; Mr. Wheeler, warned at a pretrial conference, was penalized $1,500 (and $3,000 in two other cases decided after this one was heard); Mr. Funk's case was dismissed on the pleadings; Mr. O'Connor was penalized. And in Thody v. Commissioner, T.C. Memo. 2026-30, the § 6651(f) case in the next section, the petitioner escaped a penalty only "Because this is Mr. Thody's first case before our Court", with a warning attached. A frivolous position is the opposite of reasonable cause, and it turns a penalty dispute into a larger one.

If the Notice Says Section 6651(f)

If your notice lists an addition under § 6651(f) instead of (a)(1), the stakes triple. The subsection provides: "If any failure to file any return is fraudulent, paragraph (1) of subsection (a) shall be applied" by substituting 15% for 5% and 75% for 25%. IRM 20.1.2.3.7.5 treats it as the twin of the civil fraud penalty: "The intent element of the civil fraud and the FFTF penalties are the same," and "The burden of proof is on the government to establish FFTF." The IRS asserts the ordinary 5%-to-25% addition as a fallback in case the fraud addition fails.

That burden is statutory. IRC Section 7454(a) puts the burden of proof on fraud "upon the Secretary," and Rule 142(b) sets the standard: "that burden of proof is to be carried by clear and convincing evidence". You do not have to prove you were not fraudulent; the IRS has to prove you were, and to a high standard.

The current pro se example is Thody. Mr. Thody sold airplane parts to the government for five years and filed nothing; he was convicted of tax evasion under IRC Section 7201; the IRS prepared substitutes for return and issued a notice with § 6651(f) additions (for 2009, a $51,807 deficiency and a $37,560 fraud addition). The court stated the rule—"the Commissioner has the burden of proving fraud by clear and convincing evidence"—and then granted partial summary judgment because of the conviction: "he is collaterally estopped from denying that his failure to file tax returns for the years in issue was fraudulent." Collateral estoppel means an issue already decided against you in one case cannot be relitigated in another: a criminal conviction for evading the same years' tax settles the fraud question. Notably, the IRS conceded the (a)(2) and § 6654 additions before trial, a reminder that even in a fraud case the other additions still have to be proved.

Everything in this guide is civil. Willfully failing to file is also a crime under IRC Section 7203, a misdemeanor, and evasion under § 7201 is a felony; but those are charged in a criminal prosecution, not decided in a deficiency case, and the numbers show how rarely the two meet. The IRS assessed about 4.0 million failure-to-file penalties in FY2025, while its Criminal Investigation division initiated 2,792 investigations of all kinds that year (Data Book, Table 3-10).

Without a conviction, the fight is over the badges of fraud, and that analysis is the same as for the 75% civil fraud penalty. It is covered in The 75% Fraud Penalty: Who Has To Prove It.

Check the IRS's Math

Before arguing about reasonable cause, check whether the number is right. The additions are computed by machine from dates and amounts, and the dates and amounts are sometimes wrong.

Where the Penalties Appear on Your Transcript

Your account transcript, which you can pull yourself from IRS.gov, shows the additions as transaction codes. Per IRM 20.1.2.2.5: TC 166 is the systemic assessment of the failure-to-file penalty and TC 167 its abatement; TC 276 and TC 277 are the same pair for the failure-to-pay penalty. The failure-to-file addition attributable to a deficiency is computed manually and shown in the notice of deficiency itself. In an SFR case the notice's (a)(2) column often reads "to be determined," meaning it will be computed at assessment on the SFR as the return. How To Read IRS Transcript Codes decodes the rest. (The IRS's detailed penalty-and-interest computation, PINEX, is a practitioner-only transcript, one concrete reason to involve a clinic or professional.)

The Five Things To Check

  1. The base. Failure to file: tax required to be shown, net of withholding, estimated payments, credits, and anything paid by the due date. Failure to pay: tax shown, net of the same, reduced month by month by later payments. If the audit lowered the tax you reported, § 6651(c)(2) substitutes the lower figure as the failure-to-pay base.
  2. The months. Each month or fraction of a month counts as a full month, measured from the day after the due date to the same day of the next month (Treas. Reg. § 301.6651-1(b)); the IRS's failure-to-pay page confirms "We apply full monthly charges, even if you pay your tax in full before the month ends." A due date on a weekend or holiday does not change the count. The failure-to-file clock starts after any filing extension; the failure-to-pay clock starts after the original payment due date, subject to the 90% safe harbor.
  3. The caps and the offset. 25% each; the (c)(1) offset for overlapping months; 47.5% combined in the ordinary case.
  4. The minimum. More than 60 days late: the lesser of $525 (returns due in 2026) or $510 (returns due in 2025), or 100% of the net tax required to be shown. The offset cannot go below it.
  5. The rate changes. 1% after the § 6331(d) levy notice plus ten days; 0.25% per month during an installment agreement, but only for a timely-filed return.

A Worked Example

Marcus's 2024 Form 1040 was due April 15, 2025. He did not request an extension. He filed on November 3, 2025, showing $9,000 of tax; $5,000 had been withheld and he paid nothing with the return. He paid the $4,000 balance on January 20, 2026. An audit later found a $3,000 deficiency (tax required to be shown: $12,000), and the IRS issued a notice of deficiency.

Counting months: April 16 to May 15 is month one, and so on; September 16 to October 15 is month six; October 16 to November 3 is a fraction and counts as month seven. The failure-to-file rate capped at 25% after month five.

Addition Base Months Rate Amount In the notice of deficiency?
Failure to file on the return as filed $9,000 shown minus $5,000 withheld = $4,000 7 (capped at 5) 25%, less the (c)(1) offset for the 5 overlapping months (5 x 0.5% x $4,000 = $100) $1,000 minus $100 = $900 (22.5%) No. Assessed when the return posted (TC 166).
Failure to pay on the tax shown $4,000 10 (April 16, 2025 to January 20, 2026: nine full months plus a fraction) 10 x 0.5% = 5% $200 No. Assessed on the account (TC 276).
Failure to file attributable to the deficiency $3,000 7 (capped at 5) 25%, no offset (no failure-to-pay addition runs on tax never shown on the return) $750 Yes, together with the $3,000 deficiency.

Check: the total failure-to-file addition is 25% of the $7,000 net tax required to be shown, minus the $100 offset, or $1,650, which is $900 plus $750.

Marcus's bill before interest: the $3,000 deficiency plus $750, $900 and $200 of additions, or $4,850. Interest comes on top, as the next subsection explains.

What the Tax Court can do with this: redetermine the $750 (and the $3,000). If Marcus proves reasonable cause for the late filing, the court removes the $750. And because the addition is a percentage of the tax, winning on the tax wins on the penalty too: if the court cuts the deficiency from $3,000 to $1,000, the addition attributable to it falls from $750 to $250 in the Rule 155 computation, with no reasonable-cause showing at all. The $900 and the $200 need the abatement, CDP or refund route.

Two variants show how the rules move the numbers:

  • The minimum penalty. Had Marcus's net tax due been $300, the failure-to-file addition would be the lesser of $510 (a 2024 return due in 2025) or 100% of $300, so $300.
  • No return at all. Had Marcus never filed, the whole $7,000 net tax would be a deficiency. The notice would carry the failure-to-file addition at 25% of $7,000 ($1,750), a failure-to-pay addition computed on the SFR as the return under § 6651(g)(2), and the § 6654 addition under § 6665(b)(2), all before the Tax Court.

Interest on the Additions

Interest is a separate charge with its own rules, and it treats the two additions differently. Under IRC Section 6601(e)(2), interest on most penalties runs only if the penalty "is not paid within 21 calendar days from the date of notice and demand therefor", and then only from the demand date. But § 6601(e)(2)(B) carves out the failure-to-file addition: interest on it runs for a period that "begins on the date on which the return of the tax with respect to which such addition to tax is imposed is required to be filed (including any extensions)"—the due date, extension included—and ends when it is paid.

In Marcus's case: interest on the $3,000 deficiency runs from April 15, 2025; interest on the $900 and $750 failure-to-file additions also runs from April 15, 2025; interest on the $200 failure-to-pay addition (and on any (a)(3) addition after the case) runs only from notice and demand, and only if it is not paid within 21 days. How Interest Works on Your IRS Tax Debt covers the rates and compounding (the IRS posts the current rate on its quarterly interest rates page); Understanding Your IRS Balance shows how to tell the pieces apart on a notice.

Settling the Penalty Issue

Most (76%) of Tax Court cases close by formal settlement, and more than 99% resolve without a trial on the merits. Once the petition is filed, IRS counsel answers within 60 days, and the settlement channel for a docketed case is the IRS Independent Office of Appeals.

Appeals gets the docketed case. Under Rev. Proc. 2016-22, "Counsel will refer docketed cases to Appeals for settlement consideration unless" Appeals already issued the notice or you tell Counsel you want to skip it. While the case is there, "Appeals has the sole authority to resolve a docketed case through settlement until the case is returned to Counsel." A small tax case, or a regular case with $50,000 or less per year in dispute, "may be recalled by Counsel after six months." If not recalled, Appeals returns the case to Counsel no later than 30 calendar days before the trial calendar call, so the settlement window has a clock on it. See How To Settle Your Tax Court Case and What To Expect at Your IRS Appeals Conference.

Ask about First Time Abate while you are there. A reasonable-cause loss does not bar administrative relief, and administrative relief does not depend on reasonable cause at all. IRM 20.1.1.3.3.2.1 says First Time Abate "is available for penalty relief the first time a taxpayer is subject to one or more of the referenced penalties for a single return filed by the taxpayer," provided the same type of return was filed for the three preceding years with no unreversed penalties (other than estimated-tax penalties). Tooke v. Commissioner, T.C. Memo. 2026-54, a collection case, shows an Appeals officer applying it mid-hearing: after finding "no documentation to support a reasonable cause abatement," the officer reviewed the three preceding years and "concluded that Mr. Tooke was eligible for first-time abatement with respect to the addition to tax for the failure to file." That was a CDP hearing, not a deficiency case, and no rule requires Appeals to apply First Time Abate in a docketed case. It is also an IRS administrative waiver (the IRM files it under "Administrative Waivers," apart from "Statutory and Regulatory Exceptions"), which is why the place to ask is Appeals or IRS counsel, not the judge. But eligibility is worth raising with the Appeals officer or the IRS attorney, because a penalty removed under it needs no reasonable-cause proof. (Remisovsky shows the flip side: it was refused because earlier-year additions were still unreversed.)

First Time Abate is becoming automatic. In IR-2026-83 (July 8, 2026) the IRS announced Automatic Exemption from Penalty: "AEP provides relief automatically and will replace First Time Abate for eligible returns with original due dates on or after Jan. 1, 2027," and "Taxpayers who do not qualify for AEP may still request penalty relief based on reasonable cause." The tax years that reach the Tax Court are typically three to six years old, so for a docketed case First Time Abate on request remains the mechanism. Eligibility and the request itself are in How To Request IRS Penalty Abatement and on the IRS's administrative penalty relief page.

Stipulated decisions and Rule 155. Most § 6651 disputes end with a stipulated decision document or, after an opinion, with a computation under Rule 155 (Meyer, Sawyer and Dieffenbach all end "Decision will be entered under Rule 155."; Chapin, with consolidated dockets, ends with the plural). The computation is where the IRS turns the court's holding into dollars, and it is the last chance to catch a wrong base or month count. Before signing a decision document or agreeing to a Rule 155 computation, run the five checks above on the IRS's figures.

The small-case election. Additions to tax count toward the $50,000-per-year small tax case limit. You make the election on the petition form when you file. S-case procedures are informal and pro se friendly, but a summary opinion is not precedent and cannot be appealed. See Small Case or Regular Case: Which Should You Choose?.

Interest is a separate track. Reasonable cause for a penalty does nothing to the interest on the underlying tax. Interest comes off only if the tax comes down or one of the narrow grounds in § 6404 applies. And because a Tax Court case typically takes 6-18 months, any failure-to-pay addition on tax you have not paid keeps accruing the whole time. Paying the tax shown stops that clock, since the addition runs only on what remains unpaid (§ 6651(b)(2)); and a deposit under IRC Section 6603 stops interest on the disputed deficiency without conceding it, because for interest purposes "the tax shall be treated as paid when the deposit is made." The interest guide linked above explains deposits.

What To Do Now

  1. Read the notice and find the additions. The notice is usually numbered CP3219A or, for non-filers, CP3219N; Common IRS Notices and Letters shows what they look like. Note which subsections are listed—(a)(1), (a)(2), (f), § 6654—and for which years. That is the list of penalties the Tax Court can reach. If you filed your own late return, the penalty on the tax you reported is probably not there; that one goes through the abatement route.
  2. Calendar the deadline. The petition is due within 90 days of the date on the notice (150 days if it was addressed to you outside the United States), and the deadline cannot be extended. See You Just Got a 90-Day Letter From the IRS. If the 90 days have already run, read You Missed the 90-Day Deadline. Now What?; the CDP and refund routes above are what remain. The filing fee is $60, with a waiver available.
  3. Write the assignments of error. One lettered paragraph per addition, plus a fact paragraph with dates, in the petition filed through DAWSON. A penalty not assigned as error is conceded.
  4. Pull your account transcript for each year and locate the TC 166 and TC 276 lines and their dates. Confirm that what the notice calls attributable to the deficiency is not an amount already assessed on the transcript. If the IRS prepared a substitute for return, the transcript shows it as a TC 150 with no return from you and a TC 971 with action code 141 (ASFR posted); How To Read IRS Transcript Codes decodes both.
  5. If you never filed, prepare the real return now. Filing it does not stop or extend the 90-day clock, but it replaces the IRS's figures with yours: the failure-to-file addition is a percentage of the tax required to be shown, so a return that claims your deductions and credits usually shrinks the base, and it gives the IRS attorney numbers to settle on. The IRS Filed Your Return? Why It's Too High covers how to build it.
  6. Gather due-date evidence. For illness: records showing dates, duration and severity, covering the month the return was due, and evidence of what else you could not do. For hardship (failure to pay only): bank statements, income, assets and debts as of the payment due date, and what you did to provide for the tax. For e-filing: Form 8879, the preparer's acknowledgment or the rejection notice, and the transcript.
  7. Check the arithmetic against the five points above: base, months, caps and offset, minimum, rate changes.
  8. Raise First Time Abate with Appeals or Counsel if your prior three years were clean. It requires no reasonable cause.
  9. Check the Rule 155 computation or decision document before signing. The base and the month count are yours to verify.
  10. Contact a Low Income Taxpayer Clinic if you may qualify; the earlier the better.

Get Help

Section 6651 cases are won on records tied to a date, and lost on generalities. That is precisely the kind of case Low Income Taxpayer Clinics handle every day. If your income is at or below 250% of the poverty line (about $39,900 for a one-person household, plus $14,200 for each additional member) and your dispute is at or below $50,000, an LITC can represent you in Tax Court at no cost, and can pull the practitioner-only penalty computation transcript you cannot.

The representation gap is real: in the most recent National Taxpayer Advocate comparison, represented petitioners prevailed at trial in whole or in part about 23% of the time versus about 12% for those who represented themselves. That said, Higbee, Wheeler, Meyer and Humes were all argued by the taxpayers themselves, and three of the four won at least part of the penalty fight. If you are weighing paid help, When and How To Get Professional Help With Your Tax Dispute covers the options.

Resources

Statutes and regulations:

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IRS guidance and data:

Cases cited:

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This article is for informational purposes only and does not constitute legal or tax advice. For advice specific to your situation, consult a qualified tax professional or attorney.

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TaxCourtHelp.com is not affiliated with the United States Tax Court or any government agency. This site provides general information only and does not constitute legal or tax advice.