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willful neglect. The 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, but not to
exceed 25 percent in the aggregate. See sec. 6651(a)(1).
Because petitioners are calendar year taxpayers, their 1991
return was due on April 15, 1992. See sec. 6072(a). Petitioners
stipulated that they did not request an extension of time to file
their 1991 income tax return and that it was filed on January 26,
1993. Petitioners' return was not timely filed. Therefore,
unless petitioners can show that their failure to timely file
their return was due to reasonable cause and not due to willful
neglect, respondent's determination will be sustained.
The term "reasonable cause" as set forth in section
6651(a)(1) has been defined as the exercise of ordinary business
care and prudence. See sec. 301.6651-1(c)(1), Proced. & Admin.
Regs. "Willful neglect" means a "conscious, intentional failure
or reckless indifference." See United States v. Boyle, 469 U.S.
241, 245 (1985). The question of whether a failure to file a
timely return is due to reasonable cause and not willful neglect
is one of fact, on which petitioners bear the burden of proof.
See Rule 142(a); Commissioner v. Walker, 326 F.2d 261, 264 (9th
Cir. 1964), affg. in part and revg. in part on another ground 37
T.C. 962 (1962); BJR Corp. v. Commissioner, 67 T.C. 111, 131
(1976).
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