James A. Petrie IV - Page 16

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          States v. Boyle, supra at 246; sec. 301.6651-1(c)(1), Proced. &             
          Admin. Regs.  The addition to tax equals 5 percent of the tax               
          required to be shown on the return for the first month, with an             
          additional 5 percent for each additional month or fraction of a             
          month during which the failure to file continues, not to exceed a           
          maximum of 25 percent.  Sec. 6651(a)(1).                                    
               Petitioner testified that 1990 was the first time he had               
          filed a late return.  Petitioner testified that he was in the               
          middle of a divorce and did not have access to the premises or              
          his tax records until March of 1992.  Petitioner testified that             
          his Form W-2 went to the family residence which was in the                  
          exclusive possession of his former spouse.                                  
               Petitioner testified "I did everything I could to get it               
          done" and that he was precluded from filing a timely 1990 return            
          because he did not have access to the family residence or his               
          records until March 1992.  We find that petitioner failed to                
          exercise ordinary business care in timely filing his 1990 return.           
          Petitioner could have requested a duplicate Form W-2 in order to            
          timely file his 1990 return but failed to do so.                            
               Accordingly, we find petitioner is liable for the addition             
          to tax pursuant to section 6651(a)(1).                                      
               To reflect the foregoing,                                              
                                                  Decision will be entered            
                                                  under Rule 155.                     

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