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that the failure to file timely was due to reasonable cause and
not willful neglect. Sec. 6651(a)(1). 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 timely 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.
The parties stipulated that petitioner's 1990 Federal income
tax return was filed on May 28, 1991. Petitioner alleges on
brief that she filed a Form 4868 requesting an extension of time
to file that return. Statements in briefs, however, are not
evidence, Rule 143(b), and there is no such request attached to
the copy of petitioner's return that is in the record, nor is
such a request otherwise in evidence. We conclude that
petitioner's 1990 Federal income tax return was due on April 15,
1991. Sec. 6072(a). The parties have stipulated that
petitioner's 1991 Federal income tax return was filed on December
15, 1992. That return was due on April 15, 1992. Sec. 6072(a).
Petitioner concedes that her 1991 return was not filed timely.
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