Gennaro and Patricia Labato - Page 3




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               Some of the facts in this case have been stipulated and are            
          so found.  Petitioners resided in St. Cloud, Florida, at the time           
          they filed their petition.                                                  
               Gennaro Labato (petitioner) was incarcerated from August 16,           
          1996, to July 31, 1997.  Petitioner claimed that when the time              
          came to file their tax return, petitioner Patricia Labato (Mrs.             
          Labato) requested an extension of time to file because she was              
          hoping that petitioner would be released from jail shortly                  
          thereafter.  Petitioner was not released when anticipated.  Mrs.            
          Labato never received a response from the IRS.  During                      
          petitioner's period of incarceration, the IRS was aware that he             
          was being held in jail.  After his release from jail, petitioner            
          filed the return for 1996 on September 23, 1997.                            
               Respondent has no record of receiving from petitioners a               
          request for an extension of time to file.                                   
               Petitioners contend that petitioner's incarceration and his            
          inability to gather documents were reasonable cause for their               
          failure to timely file their return.  Respondent contends that              
          petitioners had no reasonable cause for failing to timely file              
          their return.                                                               
               Section 6651(a)(1) imposes an addition to tax for failure to           
          file a Federal income tax return by its due date, determined with           
          regard to any extension of time for filing previously granted.              
          The addition equals 5 percent for each month that the return is             





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