Fred Henry - Page 36




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          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.                 





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