- 38 -38
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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