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tax return for 1998 and, as previously outlined, respondent has
shown that Harlan had income in excess of the filing threshold in
1998. See secs. 6012, 6072. Thus, respondent has sustained his
burden of production.
Hence, Harlan bears the burden of proving that the failure to
file was due to reasonable cause and not willful neglect. See
Higbee v. Commissioner, supra. Petitioners appear to argue, for
the first time on brief, that Harlan did not file a return for
1998 because he did not believe he had sufficient taxable income
to require it, given his belief that the income from the flooring
business was attributable to Floors Trust. Petitioners do not
argue, and there is no evidence to indicate, that Harlan sought
professional advice regarding his decision not to file. Harlan’s
belief that he was not required to file a tax return does not
constitute reasonable cause for a failure to file a return in the
absence of timely advice from competent tax counsel. See Stevens
Bros. Found., Inc. v. Commissioner, 39 T.C. 93, 133 (1962), affd.
on this point 324 F.2d 633, 646 (8th Cir. 1963); Rollins v.
Commissioner, T.C. Memo. 2004-260. We find that Harlan has not
met his burden of proving that his failure to file was due to
reasonable cause and not willful neglect. Accordingly,
respondent’s determination that Harlan is liable for the addition
for failure to timely file his 1998 return pursuant to section
6651(a) is sustained.
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