P. David Musgrave and Barbara J. Musgrave - Page 22

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          during 1990 were a deferral from prior years.  Petitioner,                  
          however, testified that the fees in issue were only in part a               
          deferral from years prior to 1990.  Consequently, bearing heavily           
          against petitioners as authorized by Cohan, we will approximate             
          that 40 percent of the attorneys' fees paid during 1990 were                
          incurred for services rendered in defense of the embezzlement               
          suit.  Accordingly, we hold that the S Corporation is entitled to           
          deduct $13,690.40 in attorneys' fees for its 1990 taxable year,             
          and we sustain respondent's increase in petitioners' distributive           
          share of income from the S Corporation to the extent of                     
          $20,535.60.                                                                 
               The final issue to be decided is whether petitioners are               
          liable for an addition to tax and penalty pursuant to sections              
          6651 and 6662 for taxable year 1990.  Section 6651(a)(1) imposes            
          an addition to tax for failure to file timely a tax return unless           
          it is shown that such failure is due to reasonable cause and not            
          willful neglect.  A taxpayer can establish reasonable cause by              
          showing that, despite the exercise of ordinary care and prudence,           
          the taxpayer was unable to file the required tax return within              
          the prescribed time.  United States v. Boyle, 469 U.S. 241, 246             
          (1985); Crocker v. Commissioner, 92 T.C. 899, 913 (1989); sec.              
          301.6651-1(c)(1), Proced. and Admin. Regs.  Willful neglect has             
          been defined as a conscious, intentional failure or reckless                
          indifference to timely filing a return.  United States v. Boyle,            






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