Philip E. Lucas - Page 6




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               Respondent determined that petitioner is liable for an                   
          addition to tax under section 6651(a)(1) for failure to timely                
          file his 1995 return.  Petitioner asserts that he did not file a              
          return for 1995 because he received a Form 1099 rather than a                 
          Form W-2 from his employer.  He claims that given the                         
          misclassification of his employment status by his employer, he                
          did not want to file a return as a self-employed individual.                  
               Misclassification of an employee, however, does not relieve              
          the employee of his liability for filing a correct tax return.                
          See Grooms v. Commissioner, supra; Baasch v. United States, 742               
          F. Supp. 65 (E.D.N.Y. 1990), affd. without published opinion 930              
          F.2d 911 (2d Cir. 1991).  There is no indication that petitioner              
          sought the advice of a tax adviser who would have informed him                
          that he was required to file a return under these circumstances.              
          Cf. Moorefield v. Commissioner, T.C. Memo. 1996-98, affd. on                  
          other issues without published opinion 133 F.3d 928 (9th Cir.                 
          1997).  Petitioner therefore did not have reasonable cause for                
          failing to file a return for 1995 and is liable for the addition              
          to tax under section 6651(a)(1).                                              














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