Humes Houston Hart - Page 15

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          These payments, therefore, are considered voluntary in nature as            
          they were not mandated by a qualifying divorce instrument at the            
          time they were made.  Thus, they do not qualify as alimony for              
          Federal income tax purposes, even though the instrument is made             
          retroactive to the date of the earlier payments.  See, e.g.,                
          White v. Commissioner, supra.  All of the claimed alimony                   
          payments were made before the circuit court entered the order.              
          Accordingly, the payments are not deductible, and we sustain                
          respondent's determination with respect to this issue.                      
          6.  Delinquency Penalty                                                     
               Petitioner filed Federal income tax returns for the taxable            
          years 1987 and 1988 on September 5, 1991.  Respondent determined            
          that petitioner is liable for an addition to tax under section              
          6651(a)(1) because he failed to timely file his 1987 and 1988               
          Federal income tax returns or show that his delinquent filing was           
          due to reasonable cause.                                                    
               Section 6651(a)(1) imposes a monthly charge equal to 5                 
          percent of the amount of tax that should have been shown on the             
          return, subject to a maximum charge of 25 percent.  The addition            
          to tax imposed under section 6651(a)(1) does not apply if                   
          petitioner can prove that his failure to file was (1) due to                
          reasonable cause, and (2) not due to willful neglect.  Sec.                 
          6651(a); United States v. Boyle, 469 U.S. 241, 245 (1985).  A               
          failure to file timely a Federal income tax return is due to                
          reasonable cause if the taxpayer exercised ordinary business care           

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