John Van Heemst - Page 41

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          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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