Randal W. Howard - Page 5




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          Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984).  Respondent           
          is sustained on this issue.3                                                
               Respondent determined an addition to tax as a result of                
          petitioner’s failure to timely file his tax returns for the tax             
          year 1996.  Section 6651(a)(1) imposes an addition to tax for               
          failure to timely file a tax return.  The addition to tax is                
          equal to 5 percent of the amount of the tax required to be shown            
          on the return if the failure to file is not for more than 1                 
          month.  Sec. 6651(a)(1).  An additional 5 percent is imposed for            
          each month or fraction thereof in which the failure to file                 
          continues, to a maximum of 25 percent of the tax.  Id.                      
               The addition is applicable unless petitioner establishes               
          that his failure to timely file the return was due to reasonable            
          cause and not willful neglect.  Id.  If petitioner exercised                
          ordinary business care and prudence and was nonetheless unable to           
          file his return within the date prescribed by law, then                     
          reasonable cause exists.  Sec. 301.6651-1(c)(1), Proced. & Admin.           
          Regs.  “Willful neglect” means a “conscious, intentional failure            



          3    Because petitioner failed to introduce any credible                    
          evidence, he failed to meet the requirements of sec. 7491(a), as            
          amended, so as to place the burden of proof on respondent with              
          respect to any factual issue relevant to ascertaining liability             
          for the tax deficiency in issue.  As to the additions to tax                
          under secs. 6651 and 6654, we find that respondent has satisfied            
          his burden of production under sec. 7491(c) because the record              
          shows that petitioner’s return was never filed and petitioner               
          underpaid the estimated tax due.  Higbee v. Commissioner, 116               
          T.C. 438, 442 (2001).                                                       





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