Herbert C. Elliott - Page 11

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          addition to tax is 5 percent of the amount required to be                   
          reported on the return for each month or fraction thereof during            
          which such failure to file continues, not to exceed 25 percent in           
          the aggregate.  See sec. 6651(a)(1).  The question whether                  
          failure to timely file is due to reasonable cause and not willful           
          neglect is one of fact, on which petitioner bears the burden of             
          proof.  See Rule 142(a); United States v. Boyle, 469 U.S. 241               
               Petitioner's argument regarding the imposition of the                  
          section 6651(a)(1) addition to tax is contained in the following            
          sentence:  "In that petitioner's 1990 income tax return was                 
          timely filed, it follows that petitioner is not liable for this             
          penalty."  We have found that petitioner's return was not timely            
          filed.  Moreover, as United States v. Boyle, supra, makes clear,            
          while a taxpayer may entrust the filing of a tax return to an               
          agent, the taxpayer does so at his or her own risk.  Respondent's           
          determination of the addition to tax under section 6651(a)(1) for           
          1990 is sustained.                                                          
                                                  Decision will be entered            
                                             for respondent.                          

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