Mark J. and Deborah A. Hanna - Page 5

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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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