- 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.Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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