16
Petitioner's 1988 and 1989 Federal income tax returns were
due on August 15, 1989, and August 15, 1990, respectively.
Petitioner filed his 1988 Federal income tax return on September
27, 1989, and he filed his 1989 Federal income tax return on
September 18, 1991. Petitioner presented no evidence to show
that the untimely filings were due to reasonable cause and not
due to willful neglect. We sustain respondent's determination
that petitioner is subject to an addition to tax under section
6651(a)(1) in each year.
Negligence Addition to Tax and Penalty
Respondent determined that petitioner is liable for an
addition to tax under section 6653(a)(1) for the taxable year
1988 and that petitioner is liable for a penalty under section
6662(a) for the taxable year 1989. Section 6653(a)(1) imposes an
addition to tax equal to 5 percent of the underpayment if any
part of the underpayment is attributable to negligence. Section
6662(a) imposes a penalty equal to 20 percent of the portion of
the underpayment which is attributable to negligence.
Negligence is defined as the lack of due care or the failure
to do what a prudent person would do under the circumstances.
Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir. 1967),
affg. in part and remanding in part 43 T.C. 168 (1964); Neely v.
Commissioner, 85 T.C. 934, 947 (1985). Petitioner must prove
that the negligence addition to tax and the penalty do not apply.
Bixby v. Commissioner, 58 T.C. 757, 791 (1972).
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