IRS Failure to File a Tax Return — IRC section 6651(a)(1)

20.1.2.3  (09-04-2009)
Failure to File a Tax Return — IRC section 6651(a)(1)

  1. IRC section 6651(a)(1) imposes a penalty for failure to file a tax return by the date prescribed (including extensions), unless it is shown that the failure is due to reasonable cause and not due to willful neglect. See IRM 20.1.1.3 for a discussion of penalty relief.

  2. Penalties for failure to file information returns are discussed in IRM 20.1.7, Information Return Penalties. For failure to file returns relating to exempt organizations and certain trusts see IRM 20.1.8.

  3. For individuals and entities outside the United States See IRM 20.1.2.1.2.1.(5), IRM 3.21.3 and Treas. Reg. §1.6072-2 for the proper application of the FTF penalty. For explanatory language regarding FTF on a statutory notice, see IRM 4.8.9.

20.1.2.3.1  (09-04-2009)
Penalty Computation

  1. Determine the FTF penalty period.

    1. The penalty period extends from the return due date (or extended due date) for each month or part of a month the return is late, not to exceed five consecutive months.

    2. The FTF penalty does not apply during the period covered by a valid extension of time to file. TC 460 and TC 620 identify extensions.

    3. When a return is filed (i.e., postmarked) or a payment is made by a prescribed due date of, for example, April 15, but is not received until April 24, the "timely mailing-timely filing" rule of IRC section 7502 applies and FTF/FTP penalties are not assessed. However, a return filed (i.e. postmarked) or a payment made after the prescribed due date, for example, on April 16, received on April 24, is not deemed filed/paid until actually received and FTF/FTP penalties will be computed and assessed according to the date of receipt. Sanderling, Inc v Commissioner, 66 TC 743 (1976). In other words, a return due April 15, postmarked July 13, received July 17, is assessed four (not three) months FTF and FTP penalties. See IRM 20.1.2.1.2.4 paragraph 4, 5, and 6.

    4. A return due date, extended under IRC section 7503 by virtue of falling on a Saturday, Sunday or legal holiday, does not affect the FTF/FTP penalty computation start date. For example, when April 15 falls on a Saturday, the return due date is extended to Monday, April 17. A taxpayer's return (with tax paid in full with the return), received on June 16, is assessed FTF and FTP for three (not two) months. Label-Matic, Inc. v United States, 33AFTR 2d 74-1181 (N.D. CA1974).

  2. Determine the FTF penalty rate. The FTF penalty rate in relation to late or unpaid amounts showing due on the return as filed (41/2% when FTP applies for the same months) and the FTF penalty rate in relation to late or unpaid subsequent assessments (5% a month for the same number of months the return was originally late) are both contained in IRC section 6651(c)(1).

    1. Generally, the FTF penalty is 5% of the net amount due per month (or part of a month) not to exceed five months.

    2. When the FTF penalty and the FTP penalty under IRC section 6651(a)(2) apply at the same time, the 5% FTF penalty rate is reduced by the 1/2% FTP penalty rate under IRC section 6651(a)(2). In other words, FTF is then assessed at a rate of 41/2% a month and FTP at 1/2% a month. When both FTF and FTP apply for five months, the maximum FTF penalty rate is 221/2%.

    3. The FTF penalty rate is only reduced by the 1/2% FTP penalty rate under IRC section 6651(a)(2)--regarding unpaid amounts shown due on the return. The 1/2% FTP penalty under IRC section 6651(a)(3) --regarding unpaid amounts subsequently assessed, e.g., TC 290 and TC 300--does not reduce the 5% FTF penalty rate.

    4. When a delinquent return is later assessed an additional tax (e.g., TC 290/300), the FTF penalty is calculated from the return due date (or extended due date) on the deficiency at 5% a month for each month the return was originally past due. This includes underpayment amended returns.

    5. When a delinquent return has the original tax reduced (e.g., TC 291/301), the FTF penalty is re-calculated from the return due date (or extended due date) on the reduced amount of tax using the rate originally applied for the same number of months.

    6. Caution: When the return is filed and tax paid three months late, FTF applies at 41/2% and FTP applies at1/2%. If FTP is subsequently abated in full, FTF is recalculated at 5% for three months, effectively creating a wash.

  3. Multiply the net amount due (see See IRM 20.1.2.1.2.5.) times the number of months the return is past due times the applicable monthly rate. This figure is not to exceed 25% of the net amount due. Only payments made on or before the return due date (excluding extensions) serve to reduce the amount on which the FTF penalty is calculated. For example, a taxpayer with a return due April 15, not on a valid extension to October 15, makes a payment of $1,000 on June 20 and files the return on October 10 showing a refund of $200. FTP applies for 3 months at 1/2% per month on $800, FTF applies for 3 months at 41/2% per month on $800 and FTF applies for 2 months at 5% per month on $800.

  4. Example FTF penalty calculations:

    1. An individual taxpayer files the TY 2004 return on June 19, 2005 with a tax liability of $700 paid in full with the return. Since the FTF and the 1/2% FTP penalty under IRC 6651(a)(2) apply at the same time, the 5% FTF penalty is reduced to 41/2%. The FTF penalty rate of 41/2% a month, times three months, times $700 = $94.50.

      Note:

      Since the return was filed more than 60 days late and the $94.50 FTF penalty is less than the lesser of $100 or 100% of the amount required to be shown as tax on the return (i.e., $700), the minimum FTF penalty calculation applies and the correct FTF penalty is $100. See IRM 20.1.2.2.

    2. The same taxpayer is subsequently audited and a deficiency of $1,200 is assessed on February 19, 2006. The FTF penalty applies at a rate of 5% a month, times three months, times $1,200 = $180. This amount is in addition to any prior FTF penalty that was previously imposed. The 5% FTF penalty rate on a subsequent assessment (deficiency) is not reduced by any FTP penalty rate.

    3. A TY 2006 return is filed four months late on July 21, 2007, claiming a $400 refund. The return is subsequently audited and a deficiency of $1,200 is assessed. Since the $400 refund constitutes an amount of tax paid (whether by withholding, estimated payments or any credits) before the return due date (without regard to extensions), the $1,200 audit deficiency is reduced by the $400 refund and the FTF penalty is calculated on $800: 5% times four months, times $800 = $160.


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