AJF Transportation Consultants, Inc., et al. - Page 38

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             due to reasonable cause and not willful neglect is one of fact,                                      
             on which petitioners bear the burden of proof.  Rule 142(a); Lee                                     
             v. Commissioner, 227 F.2d 181, 184 (5th Cir. 1955), affg. a                                          
             Memorandum Opinion of this Court dated July 31, 1953; BJR Corp.                                      
             v. Commissioner, 67 T.C. 111, 131 (1976).                                                            
                    Taxpayers have a nondelegable duty to file timely tax                                         
             returns.  United States v. Boyle, supra at 250.  Reasonable cause                                    
             for the failure to timely file the return cannot be established                                      
             merely by stating that such return was in the hands of the agent.                                    
             Lynch v. Commissioner, T.C. Memo. 1983-173 (citing Logan Lumber                                      
             Co. v. Commissioner, 365 F.2d 846, 854 (5th Cir. 1966), affg.                                        
             T.C. Memo. 1964-126).                                                                                
                    In this case, AJF neglected to retrieve its tax returns from                                  
             its return preparer, Witkowski, and timely file them with                                            
             respondent.  Therefore, we find that AJF's untimely filing of its                                    
             returns was not due to reasonable cause.  Accordingly, we sustain                                    
             respondent's determination with respect to the additions to tax                                      
             imposed by section 6651(a) for AJF's 1988, 1989, and 1990 taxable                                    
             years.                                                                                               
                    Contentions not addressed are either irrelevant or without                                    
             merit.                                                                                               
                    To reflect the foregoing,                                                                     








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