John Joe Wilson - Page 9

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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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