Estate of Margaret Landers, Deceased, Dale Seltzer, Co-Administrator - Page 13

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          v. Commissioner, T.C. Memo. 1992-690, affd. without published               
          opinion 19 F.3d 26 (9th Cir. 1994).  While petitioner asks the              
          Court to adopt a different rule because Seltzer is not a tax                
          professional, we decline to do so.3                                         
          2.  Addition to Tax for Late Payment                                        
               Section 6651(a)(2) provides an addition to tax of 0.5                  
          percent per month (up to a maximum of 25 percent) for failing to            
          pay on or before the payment due date the taxes shown on a                  
          return, unless that failure to pay is due to reasonable cause and           
          not due to willful neglect.  See United States v. Boyle, supra at           
          245; Crocker v. Commissioner, 92 T.C. 899, 912 (1989); sec.                 
          301.6651-1(a)(2), Proced. & Admin. Regs.  Again, respondent has             
          met his burden of production under section 7491(c) as to the                
          applicability of section 6651(a)(2), and petitioner bears a                 
          burden of proving that the coadministrators had reasonable cause            
          in paying the estate’s estate tax late.  See Higbee v.                      
          Commissioner, 116 T.C. at 446-447.  Reasonable cause may be found           
          if the taxpayer exercised ordinary business care and prudence and           
          nevertheless either was unable to pay the tax or would have                 

               3 Petitioner does not claim that Seltzer is other than an              
          “ordinary person”; i.e., “one who is physically and mentally                
          capable of knowing, remembering, and complying with a deadline”,            
          United States v. Boyle, 469 U.S. 241, 253 (1985) (Brennan, J.,              
          concurring), and we view him to be an “ordinary person”.  Thus,             
          we do not address the point made by Justice Brennan in his                  
          concurrence in Boyle that a different rule may apply when a                 
          fiduciary is unable to meet the standard of “ordinary business              
          care and prudence”.                                                         




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