Humes Houston Hart - Page 16

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          and prudence and, nevertheless, was unable to file the return               
          within the prescribed time.  Sec. 301.6651-1(c)(1), Proced. &               
          Admin. Regs.  Willful neglect means a conscious, intentional                
          failure, or reckless indifference.  United States v. Boyle, supra           
          at 245.                                                                     
               Petitioner's 1987 and 1988 Federal income tax returns were             
          due, with extensions, on August 15, 1988, and August 15, 1989,              
          respectively.  Petitioner filed his 1987 and 1988 returns on                
          September 5, 1991, in response to an inquiry from the Collection            
          Division of the Internal Revenue Service, well after the due                
          dates.  Petitioner argues that he could not have filed his 1987             
          and 1988 returns on time because he was involved in an                      
          adversarial divorce and that his wife had possession of his tax             
          records.  Petitioner also argues that since he estimated that he            
          was due a refund for the 1987 and 1988 taxable years, it was not            
          a priority for him to file these returns.                                   
               We are not persuaded by petitioner's arguments.  The                   
          unavailability of records does not necessarily establish                    
          reasonable cause for failure to file timely.  See Crocker v.                
          Commissioner, 92 T.C. 899 (1989) (delinquency penalty upheld                
          where petitioner did not show what documents were still needed or           
          what actions were taken to obtain such documents).  An individual           
          must file a timely return based on the best information                     
          available; he may then file an amended return, if necessary.                
          Estate of Vriniotis v. Commissioner, 79 T.C. 298, 311 (1982).               

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