Thomas Y. Wallace - Page 13




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          Commissioner, 43 T.C. 50, 54-56 (1964), affd. 360 F.2d 358 (4th             
          Cir. 1965).  There is substantive identity between the elements             
          that we consider in determining the imposition of additions to              
          tax for fraud under former section 6653(b)(1) and under current             
          sections 6651(f) and 6663.  See Clayton v. Commissioner, 102 T.C.           
          632, 653 (1994).  Accordingly, a conviction (or guilty plea)                
          under section 7201 collaterally estops a taxpayer from denying              
          fraud for purposes of section 6651(f).  We conclude and hold that           
          petitioner is collaterally estopped from denying liability for              
          the addition to tax under section 6651(f).                                  
          Negligence for 1988                                                         
               As in effect with respect to petitioner’s 1988 taxable year,           
          section 6653(a) imposes an addition to tax equal to 5 percent of            
          any underpayment, any part of which is attributable to                      
          negligence.  “Negligence is lack of due care or failure to do               
          what a reasonable and ordinarily prudent person would do under              
          the circumstances.”  Neely v. Commissioner, 85 T.C. 934, 947                
          (1985).  A taxpayer’s failure to file a return is prima facie               
          evidence of negligence.  See Emmons v. Commissioner, 92 T.C. 342,           
          349-350 (1989), affd. 898 F.2d 50 (5th Cir. 1990).  Petitioner              
          has not challenged the addition to tax under section 6653(a), and           
          the evidence does not establish any adequate or reasonable excuse           
          or justification for petitioner’s failure to file.  Accordingly,            
          we sustain respondent’s determination that petitioner is liable             







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