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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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