(ii) the greater of (I) one-half of the present value of the nonforfeitable accrued benefit of the employee under the plan, or (II) $10,000.

Respondent contends that ERS is a qualified employer plan and that distributions from petitioner's ERS retirement plan account are taxable under section 72. Because petitioner does not dispute these contentions, we deem them conceded and will analyze the tax treatment of the April 29, 2009, loan proceeds under the provisions of section 72(p).

After petitioner received the April 29, 2009, loan proceeds petitioner's loan balance in his ERS retirement plan account was $12,802. This is $2,802 greater than the greater of one-half of his "nonforfeitable accrued benefit" (i.e., one-half of $17,071) or $10,000.⁶Seesec. 72(p)(2)(A)(ii). We therefore conclude that respondent correctly determined that petitioner had a deemed taxable distribution2015 U.S. Tax Ct. LEXIS 9">*17 of $2,802 from his ERS retirement plan account in 2009.

Subsection (t) of section 72 bears the descriptive title "10-Percent Additional Tax on Early Distributions From Qualified Retirement Plans". Paragraph (1) of subsection (t) imposes a 10% "additional tax" on any distribution from a 144 T.C. 140">*146 qualified retirement plan (as defined in section 4974(c)). Paragraph (2) provides, however, that, with certain exceptions not applicable here, the general rule of section 72(t)(1) will not apply to distributions described in section 72(t)(2)(A)-(G). Among the distributions described in section 72(t)(2)(A), which are not subject to the section 72(t)(1) additional tax, are distributions that are made on or after the date on which the employee attains age 59-1/2, sec. 72(t)(2)(A)(i), and distributions made to an employee after separation from service if the employee has attained age 55, sec. 72(t)(2)(A)(v).^{72015 U.S. Tax Ct. LEXIS 9">*18}

After reviewing the record, we observed that the parties did not stipulate or provide any evidence with respect to petitioner's age on the date on which he received the deemed distribution or that any other exception in section 72(t)(2) applied. Because we have not yet decided whether, under section 7491(c), the Commissioner bears the initial burden of production with respect to the additional tax under section 72(t), see Milner v. Commissioner, T.C. Memo 2004-111, 87 T.C.M. 1287">87 T.C.M. 1287, 1288 n.2 (2004), we ordered the parties to file supplemental briefs on this issue.

Respondent contends that (1) section 7491(c) does not place the initial burden of production with respect to the additional tax under section 72(t) on him because it is an "additional tax", sec. 72(t)(1), and not a "penalty, addition to tax, or additional amount", sec. 7491(c), and (2) even if the additional tax under section 72(t) is an "additional amount" under section 7491(c), the burden of production with respect to statutory exceptions should be on petitioner. We agree with respondent's first contention and need not address the second.^{82015 U.S. Tax Ct. LEXIS 9">*19}

144 T.C. 140">*147 Section 7491(c) provides as follows: "Penalties.--Notwithstanding any other provision of this title, the Secretary⁹ 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 terms "penalty, addition to tax, or additional amount" mirror, in part, the title of chapter 68 of the Code: "Additions to the Tax, Additional Amounts, and Assessable Penalties".¹⁰ What these terms have in common is that they refer to amounts that are assessed and collected as taxes but are not themselves taxes or surtaxes.^{112015 U.S. Tax Ct. LEXIS 9">*21} See Pen Coal Corp. v. Commissioner, 107 T.C. 249">107 T.C. 249, 107 T.C. 249">258 (1996) ("As our detailed2015 U.S. Tax Ct. LEXIS 9">*20 analysis of section 6214(a) and its legislative history in Bregin amply demonstrates, Congress used the phrase 'any additional amount, or any addition to the tax' in section 6214(a) to ensure an understanding that this Court's jurisdiction encompasses items that are to be assessed, collected, and paid in the same manner as taxes, including the additions to tax and other additional amounts (not labeled 'additions to tax') described in chapter 68." (citing Bregin v. 144 T.C. 140">*148 Commissioner, 74 T.C. 1097">74 T.C. 1097, 74 T.C. 1097">1102-1103 (1980))). By contrast, the burden of production with respect to taxes and surtaxes is normally on the taxpayer.¹²SeeRule 142(a); Welch v. Helvering, 290 U.S. 111">290 U.S. at 115.

For the following reasons we are persuaded that the section 72(t) additional tax is a "tax" and not a "penalty, addition to tax, or additional amount" within the meaning of section 7491(c). First, section 72(t) calls the exaction that it imposes a "tax" and not a "penalty", "addition to tax", or "additional amount". Second, several provisions in the Code expressly refer to the additional tax under section 72(t) using the unmodified term "tax". Seesecs. 26(b)(2), 401(k)(8)(D), (m)(7)(A), 414(w)(1)(B), 877A(g)(6). Third, section 72(t) is in subtitle A, chapter 1 of the Code. Subtitle A bears the descriptive title "Income Taxes", and chapter 1 bears the descriptive title "Normal Taxes and Surtaxes". Chapter 1 provides for several income taxes, and additional income taxes are provided for elsewhere in subtitle A. By contrast, most penalties and additions to tax are in subtitle F, chapter 68 of the Code2015 U.S. Tax Ct. LEXIS 9">*22 . In Ross v. Commissioner, T.C. Memo. 1995-599, 70 T.C.M. 1596">70 T.C.M. 1596, 1600-1601 (1999), we relied on some of the same reasons in holding that the additional tax under section 72(t) is a tax and not a penalty for purposes of section 6013(d)(3) (relating to joint and several liability).¹³

Because the section 72(t) additional tax is a "tax" and not a "penalty, addition to tax, or additional amount" within the meaning of section 7491(c), the burden of production with respect to the additional tax remains on petitioner. Petitioner 144 T.C. 140">*149 failed to introduce any credible evidence showing that he is not liable for the additional tax under section 72(t) on the deemed taxable distribution. We therefore sustain respondent's determination.

The Commissioner bears the burden of production with respect to a taxpayer's liability2015 U.S. Tax Ct. LEXIS 9">*23 for additions to tax and must produce sufficient evidence indicating that it is appropriate to impose the additions to tax. Seesec. 7491(c); Higbee v. Commissioner, 116 T.C. 438">116 T.C. 438, 116 T.C. 438">446 (2001). Once the Commissioner carries the burden of production, the taxpayer must come forward with persuasive evidence that the Commissioner's determination is incorrect or that the taxpayer had reasonable cause or substantial authority for the position. See Higbee v. Commissioner, 116 T.C. 438">116 T.C. 446-447.

Relying on Swain v. Commissioner, 118 T.C. 358">118 T.C. 358, 118 T.C. 358">364-365 (2002), respondent contends that petitioner conceded the additions to tax under section 6651(a)(1) and (2) by failing to assign error to the additions to tax in the petition. See alsoRule 34(b)(4). We disagree.

In118 T.C. 358">Swain, the parties did not try or submit the case by implied consent. By contrast, respondent first asserted that petitioner failed to properly plead his case after this case was submitted. Respondent's answer and pretrial memorandum both stated that the additions to tax were at issue, and--presumably on that basis-- the case was submitted for decision under Rule 122. We therefore conclude that the parties submitted the issue of petitioner's liability for the additions to tax for decision by this Court by implied consent. SeeRules 41(b), 122. The burden of production with respect to the additions to tax under section 6651(a)(1) and (2) is on respondent. Seesec. 7491(c).

Section 6651(a)(1) authorizes the imposition of an addition to tax for failure to timely file a return unless it is shown that such failure is due to reasonable cause and not due to willful neglect. See United States v. Boyle, 469 U.S. 241">469 U.S. 241, 469 U.S. 241">245, 105 S. Ct. 687">105 S. Ct. 687, 83 L. Ed. 2d 622">83 L. Ed. 2d 622 (1985). A failure to timely file a Federal income tax return 144 T.C. 140">*150 is due to reasonable cause if the taxpayer exercised ordinary business care and prudence but nevertheless was unable to file the return within the prescribed time. Seesec. 301.6651-1(c)(1), Proced. & Admin. Regs. Circumstances that are considered to constitute reasonable cause for failure to timely file a return are typically those outside of the taxpayer's control, including, for example: (1) unavoidable postal delays; (2) the timely filing of a return with the wrong office; (3) the death or serious illness of the taxpayer or a member of the taxpayer's immediate family; (4) a taxpayer's unavoidable absence from the United States; (5) destruction by casualty of a taxpayer's records or place of business; and (6) reliance on the erroneous advice of an IRS officer or employee. See McMahan v. Commissioner, 114 F.3d 366">114 F.3d 366, 114 F.3d 366">369 (2d Cir. 1997), aff'gT.C. Memo. 1995-547.

Petitioner was required to file a return for 2009, see supra part II, and failed to do so. Accordingly, respondent has carried his burden of producing evidence showing that2015 U.S. Tax Ct. LEXIS 9">*25 the addition to tax under section 6651(a)(1) is appropriate.

Petitioner has failed to introduce any credible evidence showing that he had reasonable cause for failing to file his 2009 return. Accordingly, he is liable for the addition to tax under section 6651(a)(1).

Section 6651(a)(2) imposes an addition to tax for failure to pay the amount of tax shown on a taxpayer's Federal income tax return on or before the payment due date, unless such failure is due to reasonable cause and not due to willful neglect.^{142015 U.S. Tax Ct. LEXIS 9">*26} The section 6651(a)(2) addition to tax applies only when an amount of tax is shown on a return filed by the taxpayer or a section 6020 substitute for return prepared by the Secretary. Seesec. 6651(a)(2), (g)(2); Cabirac v. Commissioner, 120 T.C. 163">120 T.C. 163, 120 T.C. 163">170 (2003). Where the taxpayer did not file a return, the Commissioner must introduce evidence that a substitute for return satisfying the requirements of section 6020(b) was made. See Wheeler v. Commissioner, 127 T.C. 200">127 T.C. 200, 127 T.C. 200">210 (2006), aff'd, 521 F.3d 1289">521 F.3d 1289 (10th Cir. 2008). A 144 T.C. 140">*151 failure to timely pay the amount due on a Federal income tax return is due to reasonable cause if the taxpayer exercised ordinary business care and prudence in providing for the timely payment of his or her tax liability but nevertheless was either unable to pay the tax or would suffer an undue hardship if he or she paid on the due date. Seesec. 301.6651-1(c)(1), Proced. & Admin. Regs.

Respondent concedes that he has not met his burden of production on this issue because he failed to introduce into evidence the substitute for return that he purportedly filed for petitioner. See Wheeler v. Commissioner, 127 T.C. 200">127 T.C. 210. Accordingly, petitioner is not liable for the addition to tax under section 6651(a)(2).

Under section 6673(a)(1), this Court may require a taxpayer to pay a penalty not in excess of $25,000 whenever it appears that: (1) the taxpayer has instituted or maintained proceedings primarily for delay; (2) the taxpayer's position is frivolous or groundless; or (3) the taxpayer unreasonably failed to pursue available administrative remedies. A taxpayer's position is frivolous or groundless if it is "'contrary to established law and unsupported by a reasoned, colorable argument for change in the law.'" Williams v. Commissioner, 114 T.C. 136">114 T.C. 136, 114 T.C. 136">144 (2000) (quoting Coleman v. Commissioner, 791 F.2d 68">791 F.2d 68, 791 F.2d 68">71 (7th Cir. 1986)).

Although petitioner asserted several frivolous positions in his answering brief, respondent did not request that we impose on petitioner a penalty pursuant to section 6673(a)(1). In the exercise of our discretion we will not impose a section 6673(a)(1) penalty on petitioner at this time.2015 U.S. Tax Ct. LEXIS 9">*27 However, we warn petitioner that if, in the future, he maintains groundless positions in this Court, he runs the risk that we will sanction him under section 6673(a)(1).

We have considered the parties' remaining arguments, and to the extent not discussed above, conclude those arguments are irrelevant, moot, or without merit.

144 T.C. 140">*152 To reflect the foregoing,

Decision will be entered for respondent as to the deficiency and the section 6651(a)(1) addition to tax and for petitioner as to the section 6651(a)(2) addition to tax.