MEMORANDUM FINDINGS OF FACT AND OPINION

HALPERN, Judge: By notice of deficiency dated April 1, 2002 (the notice), respondent determined a deficiency of $ 3,390 in petitioner's 1995 Federal income tax, an $ 848 addition to tax under section 6651(a)(1), for failure to file a return, and a $ 185 addition to tax under section 6654 for failure to pay estimated income taxes. ¹ After concessions, the issues for decision are (1) whether assessment of the tax (and additions to tax) would be untimely because of the 3-year period of limitations generally imposed on such assessments; (2) whether the notice is "insufficient" because it was not a joint notice to both petitioner and her husband, Bernard Quarterman, Sr. (Mr. Quarterman), and, assuming2004 Tax Ct. Memo LEXIS 253">*255 issues (1) and (2) are decided in respondent's favor; (3) whether the interest included in petitioner's income by respondent constituted interest on a joint bank account belonging to petitioner and Mr. Quarterman with the result that one-half of that interest is excludable from her income; and (4) whether petitioner is liable for the additions to tax.

FINDINGS OF FACT

Some facts are stipulated and are so found. The stipulation of facts, with accompanying exhibits, is incorporated herein by this reference.

At the time the petition was filed, petitioner resided in Washington, D.C.

Petitioner was employed as an architect by the Federal Government, Department of Veterans Affairs, when, on October 27, 1992, at age 52, she retired on full disability. During 1995, both petitioner2004 Tax Ct. Memo LEXIS 253">*256 and Mr. Quarterman were retired and receiving pensions, she from the Federal Government and he from his former employer, the District of Columbia. Mr. Quarterman died on September 17, 2002.

Petitioner and Mr. Quarterman filed a joint Form 1040, U.S. Individual Income Tax Return (joint return), for each of the years 1994 and 1996, but respondent has no record that petitioner filed a return (either separate or joint with Mr. Quarterman) for 1995.

On October 29, 2003, almost 17 months after the notice was issued, petitioner submitted to counsel for respondent a completed Form 1040, U.S. Individual Income Tax Return, for 1995, dated October 29, 2003, on behalf of herself and Mr. Quarterman (the 1995 Form 1040). Petitioner prepared the 1995 Form 1040 by copying a draft or copy of a return that Mr. Quarterman had previously prepared. The income items listed in the 1995 Form 1040 consist of $ 56,000 representing an estimate of the combined pension income received by her and Mr. Quarterman during 1995 (approximately $ 28,000 for each), $ 900 of "taxable interest income", and a $ 788 refund of 1994 Federal income taxes. The 1995 Form 1040 also reports an $ 18,087 loss attributable to rental2004 Tax Ct. Memo LEXIS 253">*257 real estate, $ 26,550 of itemized deductions, $ 5,000 for personal exemptions, taxable income of $ 5,963 ² and tax due of $ 870. The form also claims tax payments of $ 2,600 resulting in a refund due of $ 1,630.

The $ 3,390 tax deficiency determined by respondent for 1995 is the result of respondent's inclusion in petitioner's income for that year of (1) $ 28,725 listed on a Form 1099R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., issued by the Office of Personnel Management (OPM) as paid to petitioner for 1995 and described by respondent as a "gross distribution" and (2) $ 279 of bank account interest listed on Forms 1099-INT, Interest Income, issued by the "First Union National Bank Of DC" (the bank) 2004 Tax Ct. Memo LEXIS 253">*258 as paid to petitioner for 1995, and respondent's allowance of a $ 2,500 personal exemption and a $ 3,900 standard deduction, adjustments which give rise to taxable income of $ 22,604. Respondent gives petitioner credit for zero "PRE-PAID CREDITS (withholding, ES tax payments etc.)".

OPINION

By the petition, petitioner assigned error to the deficiency in (and additions to) tax determined by respondent. Specifically, petitioner claims that respondent erred in determining that she was taxable on her retirement income. At trial, she characterized her retirement income (pension) as a "disability insurance annuity". Prior to trial, in a letter to respondent dated November 13, 2002, petitioner's counsel made the same argument characterizing petitioner's pension as "disability insurance benefits". On brief, petitioner abandons that argument as mistaken and concedes that her pension is taxable. We accept petitioner's concession that the $ 28,725 paid to petitioner by OPM in 1995 is includable in petitioner's 1995 gross income. ³

2004 Tax Ct. Memo LEXIS 253">*259 Also, by the petition, petitioner does not claim any benefit (either a reduction in the tax deficiency or in the additions to tax as determined by the notice) attributable to the rental real estate loss, itemized deductions, and tax payments reported on the 1995 Form 1040. Nor did she offer any substantiation of those items during the trial. ⁴ Therefore, we find that petitioner has failed to raise, for our consideration, an issue regarding her entitlement to any such benefit.

Petitioner argues that the notice was both untimely and "insufficient". Petitioner did not by pleading or motion raise the affirmative defense of statute of limitations or claim lack of jurisdiction. See Rules2004 Tax Ct. Memo LEXIS 253">*260 39 and 40. Nevertheless, at trial and on brief, petitioner has pursued the theory that the notice was both untimely and insufficient. Those arguments are premised upon petitioner's position that she and Mr. Quarterman filed a timely 1995 joint return. Petitioner also argues that she is taxable on only one- half of the interest income attributed to her by respondent and that she is not liable for the additions to tax, issues not specifically addressed in the petition. Respondent has not objected that petitioner has attempted to try issues not raised by the pleadings. See Rule 41(b). We shall treat petitioner's claims as having been raised by the pleadings. No amendment of the petition is required. See id.

The stipulation of facts entered into by the parties includes an original "Certification of Lack of Record", Form 3050, which states that respondent's Philadelphia, Pennsylvania, office conducted a "thorough search" but found no record that petitioner filed a Form 1040 for 1995. Arun Sharma, one of respondent's revenue agents, testified during the trial that he had examined "IRS transcripts" in the administrative file for this case, which2004 Tax Ct. Memo LEXIS 253">*261 "show that * * * [petitioner] did not file a [1995] tax return."

Petitioner testified that she had "no way to be positive that * * * [Mr. Quarterman] mailed them [the 1995 tax forms that he had "filled out"], but it is my belief that he mailed the 1995 tax return."

Respondent's Form 3050 and the testimony of Revenue Agent Sharma, which support respondent's position that petitioner never filed a return for 1995, are more persuasive than petitioner's unsubstantiated belief that Mr. Quarterman filed a 1995 joint return. See Rodriguez v. Comm'r, T.C. Memo. 2003-153. As we stated in Espinoza v. Commissioner, 78 T.C. 412">78 T.C. 412, 78 T.C. 412">421-422 (1982):

     A long line of cases has established that the running of

   the statute of limitations on assessment requires the taxpayer

   to prove the date of the filing of a return. Where there is a

   question as to whether the return was filed, the records of the

   IRS are an item of evidence. Moreover, the absence of an entry

   on such record is evidence of the nonoccurrence of an event

   ordinarily recorded. [Citations omitted.]

Therefore, we find that petitioner and2004 Tax Ct. Memo LEXIS 253">*262 Mr. Quarterman did not file a joint return for 1995. ⁵ On the basis of that finding, we conclude that the notice was timely issued. See section 6501(c)(3), which provides, in pertinent part: "In the case of failure to file a return, the tax may be assessed * * * at any time." See also 78 T.C. 412">Espinoza v. Commissioner, supra (taxpayer's motion for summary judgment claiming that proposed deficiencies were barred by expiration of the statute of limitations on assessments denied where the evidence indicated that no returns had been filed for the years in dispute). ⁶

2004 Tax Ct. Memo LEXIS 253">*263 We also reject petitioner's argument that the notice is "insufficient" (which we interpret to mean invalid for purposes of section 6212(b)(2)) because it was not a "joint notice" issued to both petitioner and Mr. Quarterman. Although petitioner and Mr. Quarterman may have filed joint returns for taxable years other than 1995, we have found that they did not elect to file a 1995 joint return under section 6013(a) and section 1.6013-1(a), Income Tax Regs. Therefore, respondent could not issue a "joint notice" under section 6212(b)(2), which is only applicable "[i]n the case of a joint income tax return filed by husband and wife". ⁷

Petitioner argues on brief that the $ 279 of interest attributed to petitioner by respondent in the notice of deficiency (the interest) constituted interest on a joint bank account and that only one-half of that interest is includable in petitioner's income. ⁸Statements in briefs do not constitute evidence, Rule 143(b), and there is no evidence in the record to support petitioner's allegation on brief that the interest was generated by a bank account jointly owned by petitioner and Mr. Quarterman. Because petitioner has failed to introduce "credible evidence" of a joint bank account, she retains the burden of proof with respect to the propriety of attributing one-half the interest to Mr. Quarterman. See sec. 7491(a)(1).

2004 Tax Ct. Memo LEXIS 253">*265 In fact, the available evidence suggests that the interest was paid to petitioner. In the notice, respondent refers to 3 Forms 1099 INT issued by the bank, which list interest payments of $ 49, $ 99, and $ 131 as "paid to Ozie R. M. Quarterman". In addition, the 1995 Form 1040, on line 8a and on Schedule B, line 4, lists $ 900 of taxable interest, ⁹ which suggests that respondent has, in fact, sought to tax only that portion of the total 1995 interest that was separately paid to petitioner. Lastly, in response to a question by counsel for respondent, petitioner admitted during the trial that she received $ 279 of interest from the bank.

2004 Tax Ct. Memo LEXIS 253">*266 Therefore, we sustain respondent's inclusion of $ 279 of interest in petitioner's 1995 income.

IV. Respondent's Section 6651(a) Determination

Section 6651(a)(1)provides for an addition to tax in the event a taxpayer fails to file a timely return (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. The amount of the addition is equal to 5 percent of the amount required to be shown as tax on the delinquent return for each month or fraction thereof during which the return remains delinquent up to a maximum addition of 25 percent for returns more than 4 months delinquent. For the reasons discussed in section II, supra, we find, based upon a preponderance of the evidence, that petitioner did not file a timely 1995 return. Therefore, unless that failure to file was due to reasonable cause and not due to willful neglect, respondent's section 6651(a) determination must be sustained. ¹⁰

2004 Tax Ct. Memo LEXIS 253">*267 Petitioner retains the burden of proving reasonable cause for her failure to file. Higbee v. Comm'r, 116 T.C. 438">116 T.C. 438, 116 T.C. 438">446 (2001). Petitioner argues that she typically relied upon Mr. Quarterman to prepare and file their tax returns including, in particular, a 1995 Federal joint income tax return. Such reliance is insufficient to establish reasonable cause for a failure to file. "The failure to make a timely filing of a tax return is not excused by the taxpayer's reliance on an agent, and such reliance is not 'reasonable cause' for a late filing under section 6651(a)(1)." United States v. Boyle, 469 U.S. 241">469 U.S. 241, 469 U.S. 241">252, 83 L. Ed. 2d 622">83 L. Ed. 2d 622, 105 S. Ct. 687">105 S. Ct. 687 (1985). Therefore, we sustain respondent's imposition of a 25-percent addition to tax under section 6651(a). ¹¹

2004 Tax Ct. Memo LEXIS 253">*268 V. Respondent's Section 6654 Determination

Section 6654provides for an addition to tax in the event of an underpayment of a required installment of individual estimated tax. Sec. 6654(a) and (b). As relevant to this case, each required installment of estimated tax is equal to 25 percent of the "required annual payment", which in turn is equal to the lesser of (1) 90 percent of the tax shown on the individual's return for that year (or, if no return is filed, 90 percent of his or her tax for such year), or (2) if the individual filed a return for the immediately preceding taxable year, 100 percent of the tax shown on that return. Sec. 6654(d)(1)(A) and (B)(i) and (ii) . The due dates of the required installments for a calendar taxable year are April 15, June 15, and September 15 of that year and January 15 of the following year. Sec. 6654(c)(2).

Petitioner argues that the section 6654 addition to tax is "not merited in this case because there is no evidence of willful neglect and because there is evidence that petitioner is covered under safe harbor provisions of either I.R.C. section 6654 or I.R.C. section 6654(d)(1)(B)(ii) because the2004 Tax Ct. Memo LEXIS 253">*269 record indicates that petitioner and her husband filed a joint return in 1994 as well as in 1996". ¹²

Petitioner's argument, based upon reasonable cause2004 Tax Ct. Memo LEXIS 253">*270 and lack of willful neglect, is without merit. "Except in very limited circumstances not applicable in this case, see sec. 6654(e)(3)(B), section 6654 provides no exception for reasonable cause or lack of willful neglect." Mendes v. Comm'r, 121 T.C. 308">121 T.C. 308, 121 T.C. 308">323 (2003). However, because petitioner and Mr. Quarterman did file a joint return for 1994, petitioner may rely on the safe harbor provided by section 6654(d)(1)(B)(ii), which limits the amount of the "required annual payment" to "100 percent of the tax shown on" that return (i.e., petitioner's return "for the preceding taxable year"). ¹³

Exhibit 4P attached to the stipulation of facts is stipulated by the parties to be a photocopy of what petitioner contends is a retained copy of the joint income tax return filed by2004 Tax Ct. Memo LEXIS 253">*271 petitioner and Mr. Quarterman for 1994 (the retained 1994 return). That return shows a tax due of $ 1,585 and Federal income tax withheld of $ 2,373 resulting in a net overpayment (to be refunded) of $ 788. The parties also stipulate as follows:

     Respondent's computer records reflect that petitioner and

   her husband filed with respondent's Philadelphia Service Center

   a timely joint income tax return for the 1994 taxable year. The

   account indicates that they owed a tax liability of $ 1,721.00,

   received a withholding credit of $ 2,373.00, and were issued a

   refund in the amount of $ 652.00.

The issue we must resolve is whether it is the $ 1,585 tax liability reflected on the retained 1994 return or the $ 1,721 tax liability for 1994 reflected in respondent's "computer records" that constitutes the tax liability reflected on the 1994 joint return (the 1994 joint return liability).

We conclude that a preponderance of the evidence (which consists solely of the two stipulations and the retained 1994 return) requires a finding that the $ 1,585 tax liability reflected on the retained 1994 return constitutes the 1994 joint return liability. 2004 Tax Ct. Memo LEXIS 253">*272 In reaching that conclusion we rely upon the following facts: (1) The stipulation with respect to respondent's computer records refers to a "tax liability" of $ 1,721, which may or may not be the tax liability reflected on the 1994 joint return, i.e., the $ 1,721 could just as easily represent the tax liability after respondent's adjustment to the tax liability reflected on the 1994 joint return; (2) we have no reason to disbelieve petitioner's contention that the retained 1994 return is, in fact, a retained copy of the 1994 joint return, i.e., there was nothing in petitioner's demeanor during trial and there is nothing in the record to suggest that she would deliberately fabricate a return copy in order to slightly reduce an already modest ($ 185) addition to tax; (3) respondent failed to introduce into evidence either the filed 1994 joint return or a printout of his "computer records" of petitioner's 1994 account in order to clarify the actual amount of tax shown on the 1994 joint return. That failure gives rise to the presumption that either document, if produced, would have been unfavorable to respondent. Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158">6 T.C. 1158, 6 T.C. 1158">1165 (1946),2004 Tax Ct. Memo LEXIS 253">*273 affd. 162 F.2d 513">162 F.2d 513 (10th Cir. 1947).

Because respondent is taxing petitioner on a separate return basis for 1995, "the tax shown on" the 1994 joint return for purposes of applying the section 6654(d)(1)(B)(ii) safe harbor is the portion of the $ 1,585 joint tax liability for 1994 that results from multiplying $ 1,585 by the ratio of what would have been petitioner's separate return tax liability for 1994 to what would have been petitioner's and Mr. Quarterman's combined separate return tax liabilities for 1994. See sec. 1.6654-2(e)(1) and (2) , Example (1) sec. 1.6654-2(e)(1), Income Tax Regs.

Decision will be entered under Rule 155.