Friscia Construction, Incorporated, et al. - Page 17




                                       - 17 -                                         
         Issue 5.  Michael Friscia’s Section 6651 Addition to Tax                     
              Respondent determined an addition to tax under section                  
         6651(a)(1) for Michael Friscia’s 1995 taxable year, asserting that           
         Michael Friscia failed to file a timely return.  In order to avoid           
         this addition to tax, Michael Friscia must prove that the failure            
         was due to reasonable cause and not willful neglect.  See sec.               
         6651(a)(1); Rule 142(a); United States v. Boyle, 469 U.S. 241, 245           
         (1985); Harris v. Commissioner, T.C. Memo. 1998-332.                         
              Michael Friscia received an extension of time to file his               
         1995 tax return, which extended the due date for filing his 1995             
         tax return to October 15, 1996.  He did not file his 1995 tax                
         return until December 9, 1996.  There is no evidence in the record           
         with respect to why Michael Friscia's 1995 tax return was filed              
         late or whether reasonable cause existed.                                    
              Michael Friscia argues on brief that the loss of his business           
         records in the 1996 flood caused the delay in filing his 1995                
         return.  Implicit in Michael Friscia’s argument is that he needed            
         the extra time to reconstruct the lost records.  However, the                
         Friscias made no attempt to reconstruct any of the lost records at           
         that time.  Thus, the same records that were available to Michael            
         Friscia on October 15, 1996, when his return was due, were                   
         available to him on December 9, 1996, when he filed his return.              
         Moreover, we have held that the loss of records in an involuntary            








Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011