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the addition to tax for failure to file a timely return is
appropriate.
Section 6213(a) prohibits assessment of a deficiency during
the period within which a taxpayer may petition this Court for a
review of that deficiency. Additionally, once a petition has
been filed with this Court for review of a deficiency, assessment
of that deficiency is prohibited until this Court’s decision has
become final. Id. A review of the record suggests that
respondent abated the section 6651(a)(1) addition to tax because
assessment was premature and in violation of the strictures of
section 6213(a), not because the Appeals Office conceded the
addition to tax.
Petitioners explained that they requested an additional
extension of time to file because they had not yet compiled the
information necessary to accurately file their return for the
year at issue. The unavailability of records does not, however,
establish reasonable cause for failure to file a return timely.
See Elec. & Neon, Inc. v. Commissioner, 56 T.C. 1324, 1342-1344
(1971), affd. without published opinion 496 F.2d 876 (5th Cir.
1974); see also Ruddel v. Commissioner, T.C. Memo. 1996-125.
Moreover, petitioners failed to establish what records were
unavailable, and the record does not indicate that they attempted
to obtain the information necessary to prepare their 2002 return
from other sources. See Crocker v. Commissioner, 92 T.C. 899,
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Last modified: November 10, 2007