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instant case, we hold that petitioner has failed to prove that he
had custody of H.C. for over half of 2003. Caputi v.
Commissioner, T.C. Memo. 2004-283. Accordingly, we hold that
petitioner is not entitled to a dependency exemption under
section 152(e).
We do not need to discuss whether petitioner may file as
head of household pursuant to section 2(b) or whether petitioner
is entitled to a section 32 earned income credit for 2003 because
those sections require the child to have the same principal place
of abode as the taxpayer for more than one half of the taxable
year.5 See secs. 2(b)(1)(A), 32(c)(3).
Section 6651(a)(1) imposes an addition to tax for a failure
to file an income tax return. A taxpayer may be relieved of the
addition to tax, however, if he can demonstrate that the “failure
is due to reasonable cause and not due to willful neglect”. Id.
Willful neglect means intentional failure or reckless
indifference. United States v. Boyle, 469 U.S. 241, 245 (1985).
Section 301.6651-1(c)(1), Proced. & Admin. Regs., provides that,
if a taxpayer exercises ordinary business care and prudence and
is nevertheless unable to file on time, then the delay is due to
reasonable cause. Relying on an accountant or tax preparer to
simply file a return on time is not reasonable cause. United
States v. Boyle, supra at 252. The Commissioner has the burden
5Petitioner has conceded that D.C. is not a qualifying child
for purposes of the earned income credit
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