- 36 - Petitioner contends that he was not required to file a tax return for 1992. In support of that contention, petitioner asserts: If there was no income there was no failure to file. Even if there was income, the failure to file penalty is not applicable where the failure to file is due to reasonable cause and there is no willful neglect. The Petitioner did not consider the [$150,000] assistance payment income and his tax account[ant] did not con- sider it income. The Petitioner['s] livelihood was destroyed and it was reasonable for them to conclude that any payment relating to that law suit would also be excludable from income. To eliminate the penalty the Petitioner does not have to win but only have a reasonable basis for his actions. Respondent counters: Petitioner is not disputing the fact of nonfiling, he is apparently contending that his failure to file was due to reasonable cause. In his defense, petitioner contends that he and his return preparer did not know what the tax treatment of the assistance payments should have been. Petitioner and his return preparer failed to consult a tax attorney, the Internal Revenue Service, or a certified public accountant concerning the tax treatment of the 1992 assistance payment. Moreover, at the time * * * he considered the issue of the tax treatment of the assistance payment, peti- tioner's return preparer had never encountered an assistance payment in the preparation of an income tax return. * * * Such a defense is no defense at all. Clearly petitioner was under a nondelegable duty to seek competent tax advice rather than conclude that he did not need to file since he did not know what the tax treatment of the payment should be. * * * The addition to tax under section 6651(a)(1) does not apply where the failure to file was due to reasonable cause and not to willful neglect. See sec. 6651(a)(1). Reasonable cause under section 6651 means the exercise of ordinary business care and prudence. See sec. 306.6651-1(c)(1), Proced. & Admin. Regs.Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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