David H. Kilson, Jr. - Page 4

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          was also ill.  According to petitioner, he was “distraught” over            
          his mother’s death.                                                         
               Petitioner did not file a Federal income tax return for the            
          1996 tax year.  While on the wagon train, however, petitioner did           
          file returns for 1995 and 1997.                                             
                                     Discussion                                       
          Addition to Tax Under Section 6651(a)(1) for Failure To File                
               If a Federal income tax return is not timely filed, an                 
          addition to tax will be assessed “unless it is shown that such              
          failure is due to reasonable cause and not due to willful                   
          neglect”.  Sec. 6651(a)(1).3  A delay is due to reasonable cause            
          if “the taxpayer exercised ordinary business care and prudence              
          and was nevertheless unable to file the return within the                   
          prescribed time”.  Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.;           
          see also United States v. Boyle, 469 U.S. 241, 243 (1985).                  
               Petitioner argues that he failed to timely file his 1996               
          return because of the “emotional distress of my mother’s death,             
          my father’s ongoing illness and stressful job resulting in                  


          3   Petitioner has not argued that either sec. 7491(a) or (c)               
          applies to this case.  Additionally, the record does not indicate           
          that respondent’s examination commenced after July 22, 1998.                
          Because sec. 7491 applies only to court proceedings arising from            
          examinations commencing after July 22, 1998, Internal Revenue               
          Service Restructuring & Reform Act of 1998, Pub. L. 105-206, sec.           
          3001, 112 Stat. 726, we conclude that neither sec. 7491(a) nor              
          (c) applies here to place the burden of proof and/or production             
          upon respondent.  See Eddie Cordes, Inc. v. Commissioner, T.C.              
          Memo. 2002-125 n.13; Peacock v. Commissioner, T.C. Memo. 2002-              
          122.                                                                        





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