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"conscious, intentional failure or reckless indifference."
United States v. Boyle, 469 U.S. 241, 245 (1985); see also
Educational Fund of Elec. Indus. v. United States, 426 F.2d 1053,
1058 (2d Cir. 1970). Whether a failure to file timely is due to
reasonable cause and not willful neglect is a question of fact.2
United States v. Boyle, supra at 249 n.8; Mayer's Estate v.
Commissioner, 351 F.2d 617 (2d Cir. 1965), affg. 43 T.C. 403
(1964); Crocker v. Commissioner, 92 T.C. 899, 913 (1989).
Petitioner contends that her failure to file timely was due
to reasonable cause because of (1) the emotional trauma she
experienced as a result of the arrests of her husband, his
trials, and the attendant publicity, and (2) her belief that
records needed for the preparation of the return were unavailable
because they had been taken during the August 1992 search of the
offices of Mr. Barber and their accountant. Mr. Barber also
suggested at trial that the return was not filed because they
could not afford to have necessary reports prepared. Respondent
contends that petitioner was not incapacitated by that trauma,
2 As our decision in the instant case has been made without
resort to the burden of proof, but instead rests on the evidence
submitted, the location of the burden of proof is immaterial.
Kean v. Commissioner, 91 T.C. 575, 601 n.40 (1988). Accordingly,
we do not need to explore the extent to which respondent bears
the burden of proof by reason of having amended her answer to
increase the amount of the addition to tax sought from
petitioner. Rule 142(a); see Sanderling, Inc. v. Commissioner,
66 T.C. 743, 757-758 (1976), affd. in part and revd. in part on
other grounds 571 F.2d 174 (3d Cir. 1978).
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