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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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