Nathaniel Caleb Avery - Page 13

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          that he exercised ordinary business care and prudence and                   
          nevertheless was unable to file his 2002 Federal income tax                 
          return by the due date.  See United States v. Boyle, 469 U.S.               
          241, 246 (1985); sec. 301.6651-1(c), Proced. & Admin. Regs.                 
          Willful neglect is defined as a “conscious, intentional failure             
          or reckless indifference.”  United States v. Boyle, supra at 245.           
               Petitioner conceded in his petition that he never filed his            
          2002 tax return.  Respondent has accordingly met his burden with            
          regard to the section 6651(a)(1) addition to tax.  See sec.                 
          7491(c); Higbee v. Commissioner, supra.  Petitioner has neither             
          offered an explanation for his failure to file a 2002 Federal               
          income tax return nor produced evidence to establish any                    
          reasonable cause for his failure to file this return.  Petitioner           
          does not deny that he lacked reasonable cause; he raises tax-               
          protester arguments that lead us to conclude that his failure to            
          file a 2002 tax return was conscious, intentional, and recklessly           
          indifferent.10  We sustain respondent’s determination of an                 
          addition to tax under section 6651(a) as increased in the answer.           



               10 Petitioner had an opportunity to show error in                      
          respondent’s determination of this addition to tax but failed to            
          take advantage of that opportunity.  Petitioner alleges that the            
          addition to tax was erroneously determined because “A 6651                  
          penalty can only apply to alcohol, firearms, and tobacco taxes”,            
          and he did not engage in such excise activities during the                  
          taxable year in question.  We have previously rejected similar              
          allegations as frivolous, and we see no need to address                     
          petitioner’s allegation with any further discussion.                        





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