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testified that although Mr. Clay was physically ill during 1992 and
1993, he remained mentally sharp until his death. Petitioner and
the cotrustees frequently inquired as to Mr. Clay’s progress
regarding the necessary tax documents. Mr. Clay repeatedly assured
them of his progress. Absent Mr. Clay’s illness, undoubtedly, the
appropriate documents would have been prepared and filed.
We have held that the inability of a taxpayer to obtain
records may constitute reasonable cause to justify setting aside
the failure to timely file addition to tax. See, e.g., Berenbeim
v. Commissioner, T.C. Memo. 1992-272; Connor v. Commissioner, T.C.
Memo. 1982-302. We conclude that petitioner was unable to obtain
the necessary trust records from Mr. Clay, and consequently had
reasonable cause not to file her 1992 individual tax return, and
did not willfully neglect her duty to do so.
On the basis of the record before us, we conclude that
petitioner exercised “ordinary business care and prudence”, but
because of circumstances beyond her control, she was unable to file
her tax return timely. Accordingly, we hold that petitioner is not
liable for the addition to tax and respondent's section 6651(a)
determination is not sustained.
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