Hugh Wilkinson and Evelyn Wilkinson - Page 17

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          to file continues, not exceeding 25 percent in the aggregate.                
          The addition to tax is mandatory unless it is shown "that such               
          failure is due to reasonable cause and not due to willful                    
          neglect".  Sec. 6651(a)(1).                                                  
               To establish reasonable cause, the taxpayer must demonstrate            
          that he or she exercised ordinary business care and prudence and             
          was nonetheless unable to file a return on time.  Sec. 301.6651-             
          1(c)(1), Proced & Admin. Regs.; see Spencer v. Commissioner, T.C.            
          Memo. 1994-531.  A finding of reasonable cause negates willful               
          neglect, which has been interpreted to mean a conscious,                     
          intentional failure or reckless indifference.  United States v.              
          Boyle, 469 U.S. 241, 245 (1985).  Whether "reasonable cause" and             
          lack of "willful neglect" exist is a question of fact, and the               
          burden of establishing these facts is on the taxpayer.  Rule                 
               Dr. Wilkinson contends that his "underlying emotional                   
          disturbance" constitutes reasonable cause and negates a finding              
          of "willful neglect".3  At trial, Dr. Wilkinson presented                    
          evidence that during the relevant time period he suffered, and               
          continues to suffer, from chronic dysphoria, a mild form of                  
          depression, and a                                                            

               3  We focus on Dr. Wilkinson's "reasonable cause" argument              
          as to 1989.  Petitioners are collaterally estopped from denying              
          that Dr. Wilkinson willfully failed to file a return for 1988                
          because of Dr. Wilkinson's conviction under sec. 7203 for 1988.              
          Castillo v. Commissioner, 84 T.C. 405, 409 (1985).                           

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