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through 1987 the amount of the addition to tax was 5 percent of
the entire underpayment plus 50 percent of the interest payable
with respect to the portion of the underpayment attributable to
negligence or intentional disregard of rules or regulations.
Sec. 6653(a)(1) and (2) (taxable years 1981 through 1985);
sec. 6653(a)(1)(A) and (B) (taxable years 1986 and 1987). For
taxable years 1980 and 1988 the addition to tax was an amount
equal to 5 percent of the underpayment. Sec. 6653(a) (for
taxable year 1980); sec. 6653(a)(1) (for taxable year 1988).
Negligence is defined as the lack of due care or failure to do
what a reasonable and ordinarily prudent person would do under
the circumstances. Neely v. Commissioner, 85 T.C. 934, 947
(1985). The taxpayer bears the burden of proof. Rule 142(a);
Bixby v. Commissioner, 58 T.C. 757, 791-792 (1972).
Failure to file timely tax returns constitutes prima facie
evidence of negligence. Emmons v. Commissioner, 92 T.C. 342,
349 (1989), affd. 898 F.2d 50 (5th Cir. 1990). “The type of
evidence necessary to meet or rebut a prima facie case of
negligence arising in a late filing situation is that which
indicates the existence of an adequate and reasonable excuse or
justification for the delinquent filing.” Id. at 350. Where the
taxpayer’s evidence is insufficient to prove reasonable cause and
absence of willful neglect for purposes of section 6651(a)(1),
the taxpayer cannot carry its burden of proof for purposes of
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