- 5 - that they exercised ordinary business care and prudence and were nonetheless unable to file a return within the prescribed time. Id. 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). Petitioners bear the burden of proving that respondent’s determination was incorrect. Rule 142(a); Cluck v. Commissioner, 105 T.C. 324, 339 (1995). 1987 Petitioners argue that respondent’s failure to retain the envelope bearing the 1987 return in their file should relieve them of liability for the section 6651 addition to tax. Petitioners' argument is not supported by authority or logic. Petitioners signed the return no earlier than October 15, 1988, the last date for timely filing of the return. In their trial memorandum, they admitted that it was thereafter returned for insufficient postage and then remailed obviously after the due date. Mr. Hanna testified to the same effect. Respondent's records are consistent with this explanation. In these circumstances, respondent's failure to keep the envelope is not material. Cf. Oppenheimer v. Commissioner, 16 T.C. 515 (1951). Respondent’s determination that petitioners are liable for the section 6651(a)(1) addition to tax for 1987 will be sustained.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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