Harrison Dwight Foos - Page 6




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          receiving income but because he could not recall the exact                  
          amounts he received from the additional sources.1                           
               Because petitioner did not raise any of the items of                   
          unreported income as an issue in this case, and because he                  
          offered no evidence or arguments refuting respondent’s                      
          determinations, we uphold respondent in this regard.                        
               The second issue for decision is whether petitioner is                 
          liable for the section 6651(a)(1) additions to tax for failure to           
          file a return for 1996 and 1997.  Paragraph (1) of section                  
          6651(a) imposes an addition to tax for failure to timely file a             
          return.  A taxpayer may avoid the addition to tax if he                     
          establishes that the failure to timely file is due to reasonable            
          cause and not due to willful neglect.  “Reasonable cause”                   
          requires the taxpayer to demonstrate that he exercised ordinary             
          business care and prudence and was nonetheless unable to file a             
          return within the prescribed time.  See United States v. Boyle,             
          469 U.S. 241, 246 (1985).  “Willful neglect” means a conscious,             
          intentional failure or reckless indifference.  See id. at 245.              


          1Although petitioner has not presented evidence of any                      
          expenses incurred in his business, he received a favorable                  
          allowance for expenses from respondent.  Despite receipts of over           
          $100,000 in each of the years in issue, respondent determined               
          that petitioner had only $43,603 of self-employment income in               
          each year.  Respondent states in his trial memorandum that, due             
          to an inability to establish amounts of expenses, respondent used           
          the average of petitioner’s self-employment income for taxable              
          years 1990 through 1995 as the amount of petitioner’s self-                 
          employment income in each of 1996 and 1997.                                 





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