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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
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