Estate of Joseph G. Maltaman, Deceased, Paul J. Constantino, Special Administrator - Page 10

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          return was extended for the maximum period permitted by the                 
          regulations, to August 28, 1991.  Petitioner's estate tax return,           
          however, was not filed until January 24, 1992, almost 5 months              
          after the extended due date.  Petitioner does not dispute that              
          petitioner's estate tax return was not filed timely, nor does               
          petitioner take issue with the denial of the second extension               
          request.1                                                                   
               Section 6651(a)(1) provides that, in the case of failure to            
          file a tax return on the date prescribed for filing (including              
          any extension of time for filing), there shall be added to the              
          tax required to be shown on the return an amount equal to 5                 
          percent of that tax for each month or fraction thereof that the             
          failure to file continues, not exceeding 25 percent in the                  
          aggregate.  The addition to tax is mandatory unless it is shown             
          that the failure to file timely is due to reasonable cause and              
          not willful neglect.  Sec. 6651(a)(1); Estate of Cavenaugh v.               
          Commissioner, 100 T.C. 407, 426 (1993), affd. in part and revd.             
          in part on other grounds 51 F.3d 597 (5th Cir. 1995); Constantino           
          v. United States, 56 AFTR 2d 85-6551, at 85-6552, 85-2 USTC par.            
          13,629, at 90,429 (N.D. Cal. 1985).                                         
               Reasonable cause for delay is established where a taxpayer             
          is unable to file timely despite the exercise of ordinary                   

          1    See Estate of La Meres v. Commissioner, 98 T.C. 294, 321               
          n.24 (1992) (citing Estate of Young v. Commissioner, T.C. Memo.             
          1983-686).  Petitioner does not raise any issue concerning the              
          validity of the regulation.                                                 




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