Michael Gregorian and Yolanda Gregorian a.k.a. Yolanda Trelles - Page 15

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          the filing of their return.  Respondent had no record of                    
          receiving that return on or near that date.                                 
               Petitioner testified he was unaware that the return had not            
          been received and processed within a reasonable time period from            
          the date petitioners claimed the return was mailed.  Petitioner             
          later became concerned when he failed to receive the refund of              
          the claimed overpayment in the amount of $10,688.  It is for that           
          reason that petitioners mailed a return they clearly labeled as a           
          duplicate return, which respondent received on July 16, 2003.               
          The Court is hard-pressed to believe that a taxpayer would                  
          willfully neglect to file a timely income tax return where the              
          taxpayer has claimed an overpayment of more than $10,000.                   
          Respondent offered no explanations to the contrary.  The Court              
          finds, therefore, there was no willful neglect by petitioners in            
          the late filing of their 2001 return.  That satisfies one prong             
          of section 6651(a)(1).  The other element of section 6651(a)(1)             
          is the taxpayer’s burden of establishing that the failure to file           
          timely was due to reasonable cause.  The Court finds petitioner’s           
          testimony credible as to the circumstances in which the duplicate           
          return was filed.  Although petitioners produced no proof of                
          mailing on October 12, 2002, the Court has no reason from the               
          record to question petitioner’s testimony that he acted, in the             
          manner described, upon the advice and assistance of his return              
          preparer.  There is no evidence that would lead the Court to                






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