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section 6651(a) imposes an addition to tax for failure to timely
file a return, and paragraph (2) imposes an addition to tax for
failure to timely pay the amount of tax shown on a return. If a
taxpayer fails to file a return, the paragraph (2) addition to
tax may be calculated based upon the tax shown on the return
prepared by the Secretary pursuant to section 6020(b). Sec.
6651(g)(2).
A taxpayer may avoid the additions to tax under one or both
paragraphs if he establishes that the failure to timely file
and/or pay 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.
United States v. Boyle, 469 U.S. 241, 246 (1985). “Willful
neglect” means a conscious, intentional failure or reckless
indifference. Id. at 245.
Petitioner did not file a return for taxable year 1996 until
October 12, 2000. Petitioner’s explanation for the failure to
file is that he honestly believed he owed no taxes because he
assumed an NOL carryover was available. However, petitioner did
not file a return in 1995, making this assumption uncertain at
best and unreasonable in any case. We hold that petitioner is
liable for the addition to tax under section 6651(a)(1).
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