- 41 -
T.C. 492 (1986); Olsen v. Commissioner, T.C. Memo. 1993-432;
Estate of Cox v. United States, 637 F. Supp. 1112, 1115 (S.D.
Fla. 1986). Based on the entire record, we hold that petitioner
has failed to carry his burden of proving that his failure to
file returns for 1988 and 1989 was due to reasonable cause and
not willful neglect.
Section 6653(a)(1) Addition to Tax
Respondent determined that, in the event petitioner were not
held liable for the addition to tax for fraud for 1988, he was
liable for the addition to tax for negligence provided by section
6653(a)(1).18 The addition to tax is equal to 5 percent of the
underpayment if any part is attributable to negligence.
Negligence is defined as a lack of due care or failure to do
what a reasonable and ordinarily prudent person would do under
the circumstances. Neely v. Commissioner, 85 T.C. 934, 937
(1985). The failure to file timely a tax return is prima facie
evidence of negligence. Emmons v. Commissioner, 92 T.C. 342, 349
(1989), affd. 898 F.2d 50 (5th Cir. 1990). Petitioner bears the
burden of proving that he was not negligent. Bixby v.
Commissioner, 58 T.C. 757, 791-792 (1972).
18
Because we have held above that petitioner is liable for the
addition to tax for fraud for 1987, we need not consider
respondent’s alternative determination that petitioner is liable
for the addition to tax for negligence for that year. Sec.
6653(a)(2). No accuracy-related penalty for negligence pursuant
to sec. 6662 was determined in the alternative for 1989 because
no return was filed for that year. See supra note 8.
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