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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.
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