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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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