                       T.C. Memo. 2001-193



                     UNITED STATES TAX COURT


                 JAMES O. REUBEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 3215-00.                       Filed July 27, 2001.


     James O. Reuben, pro se.

     Linda L. Vines, for respondent.


                       MEMORANDUM OPINION


     POWELL, Special Trial Judge:   Respondent determined a

deficiency of $3,949 and an addition to tax under section

6651(a)(1) of $688 in petitioner’s 1997 Federal income tax.1




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                - 2 -

       After concessions,2 the issue before the Court is whether

respondent is estopped from asserting the deficiency and addition

to tax.    Petitioner resided in Norristown, Pennsylvania, at the

time the petition was filed.

       The applicable facts may be summarized as follows.

Petitioner failed to timely file his 1997 Federal income tax

return.    According to petitioner, in November 1998, he went to

the Internal Revenue Service Center in Philadelphia,

Pennsylvania, seeking assistance with filing his 1997 Federal

income tax return.    Petitioner did not bring any records with him

regarding his 1997 income or deductions.    An employee at the

Internal Revenue Service Center obtained third-party information

available in the Internal Revenue Service computer system and,

using that information, assisted petitioner in preparing his 1997

Federal income tax return.    That return did not report the

proceeds of an annuity of $10,365 received from petitioner’s

deceased mother, dividend income of $38, and interest income of

$12.

       Petitioner claims that the Internal Revenue Service Center

employee who assisted him was aware of the $10,365 petitioner had

received, informed petitioner that it was taxable, but also told


       2
        Petitioner conceded at trial that he received and failed
to report $10,365, the proceeds of an annuity from his deceased
mother, $38 in dividends, and $12 of interest. Petitioner also
admitted that his 1997 Federal income tax return was filed late,
on Nov. 4, 1998.
                               - 3 -

petitioner not to report it.   Petitioner testified that he knew

that this was improper, but he felt that the agent was doing him

a favor.

     Petitioner contends that respondent is estopped from

asserting a deficiency or an addition to tax based on the

inclusion of $10,365 in death benefits, $38 in dividends, and $12

of interest that petitioner failed to report in his gross income.

Petitioner’s theory is that, since respondent assisted petitioner

in filing his return by providing him with the third-party

information available to respondent as of November 1998, if there

was taxable income that petitioner failed to report, it is

respondent’s fault, and, therefore, respondent should be

precluded from asserting a deficiency or addition to tax.    We

disagree.

     The traditional elements of estoppel are:   (1) A

misrepresentation or omission of a material fact by another

party; (2) a reasonable reliance on that misrepresentation or

omission; and (3) a detriment to the other party.    See United

States v. Asmar, 827 F.2d 907, 912 (3d Cir. 1987).

     Assuming that the Internal Revenue Service Center employee

gave petitioner incorrect advice (which has a decidedly hollow

ring), petitioner may not claim estoppel against respondent based

on that advice.   Even if we assume that misinformation was given

and that petitioner relied on that information, petitioner
                              - 4 -

suffered no detriment that is legally recognizable.       He is only

required to pay the tax that was lawfully owing.    He did not

change a position to his detriment.

     With regard to the late filing addition to tax, section

6651(a)(1) provides for an addition to tax where a return is not

timely filed “unless it is shown that such failure is due to

reasonable cause and not due to willful neglect”.       Petitioner

acknowledges that his return was not timely filed.       He claims

that he had “so many things going on” that he forgot.       This does

not constitute reasonable cause.



                                           Decision will be entered

                                      for respondent.
