Joseph John Martella - Page 9

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          (1946) (“The rule is well established that the failure of a party           
          to introduce evidence within his possession and which, if true,             
          would be favorable to him, gives rise to the presumption that if            
          produced it would be unfavorable.”), affd. 162 F.2d 513 (10th               
          Cir. 1947); see also Little v. Commissioner, T.C. Memo. 1996-270            
          (“The Wichita Terminal presumption generally applies where the              
          party failing to produce the evidence has the burden of proof.”).           
          Petitioner had the opportunity to call witnesses to testify and             
          present evidence on his behalf.  However, petitioner did neither.           
          The Court therefore sustains the deficiency determined by                   
          III. Additions to Tax                                                       
               Section 6651(a) provides for a 5-percent addition to tax for           
          each month or portion thereof that the tax return is filed late,            
          not to exceed 25 percent in the aggregate, unless such failure to           
          file is due to reasonable cause and not due to willful neglect.             
          Although not defined in the Code, “reasonable cause” is viewed in           
          the applicable regulations as the “exercise of ordinary business            
          care and prudence”.  Sec. 301.6651-1(c)(1), Proced. & Admin.                
          Regs; see also United States v. Boyle, 469 U.S. 241, 246 (1985).            
          “Willful neglect” can be interpreted as a “conscious, intentional           
          failure or reckless indifference.”  United States v. Boyle, supra           
          at 245.  With respect to section 6651(a) additions to tax,                  

               6 This is subject to the agreement between the parties to              
          reduce the deficiency to $9,282 for 2001 due to petitioner’s                
          substantiation of certain deductions.  See also supra note 2.               

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