John Van Heemst - Page 40

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          section 6651(a) for each of those years.  The addition to tax for           
          failure to file timely does not apply where the taxpayer                    
          demonstrates that the failure to file was due to reasonable cause           
          and not willful neglect.  The regulations provide that reasonable           
          cause exists where the taxpayer was unable to file timely despite           
          the exercise of ordinary business care and prudence.  Sec.                  
          301.6651-1(c)(1), Proced. & Admin. Regs.  “Willful neglect” has             
          been defined as a “conscious, intentional failure or reckless               
          indifference.”  United States v. Boyle, 469 U.S. 241, 245 (1985).           
          The question whether a failure to file is due to reasonable cause           
          and not willful neglect is one of fact, on which petitioner bears           
          the burden of proof.  Rule 142(a); Lee v. Commissioner, 227 F.2d            
          181, 184 (5th Cir. 1955), affg. a Memorandum Opinion of this                
          Court dated July 31, 1953.                                                  
               Petitioner failed to file returns for 1988 and 1989.                   
          Although petitioner makes no argument directed specifically to              
          his liability for the addition to tax provided by section                   
          6651(a), petitioner testified that he believed that he was                  
          required to file returns every year, whether he owed tax or not.            
          While petitioner claims that he relied on the statement of Ms.              
          Murphy that taxes were paid through 1991, which was apparently              
          made at that time, we have rejected his claim.  Moreover, the               
          relevant question is not whether petitioner believed that tax was           
          owed, but whether he knew that a return should be filed.  Jackson           
          v. Commissioner, 864 F.2d 1521, 1527 (10th Cir. 1989), affg. 86             




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