                  T.C. Summary Opinion 2003-44



                     UNITED STATES TAX COURT



               DAVID H. KILSON, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13498-01S.              Filed April 28, 2003.


     David H. Kilson, Jr., pro se.

     Jeffrey C. Venzie, for respondent.



     POWELL, Special Trial Judge:    This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.


1
    Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                 - 2 -

     Respondent determined a deficiency and additions to tax in

petitioner’s 1996 Federal income tax as follows:

                                   Additions to Tax1
     Year Deficiency Sec. 6651(a)(1) Sec. 6651(a)(2) Sec. 6654(a)

     1996    $16,310        $3,046           $3,249        $704
     1
         The following figures are rounded to the nearest dollar.

     After concessions,2 the issues are whether petitioner is (1)

liable for the addition to tax under section 6651(a)(1) for

failure to file a Federal income tax return, and (2) liable for

the addition to tax under section 6654(a) for an underpayment of

estimated tax.    Petitioner resided in Philadelphia, Pennsylvania,

at the time the petition was filed.

                              Background

     From 1995 until 1998, petitioner was employed as a “wagon

master” for Visionquest National, Ltd., and Visionquest

Lodgemakers.     Petitioner’s duties included supervising troubled

youths on the “wagon train”, a group of wagons pulled by mules

that travels in many States along the east coast.

     In 1995, petitioner’s mother became ill and had surgery.       In

July of 1996, petitioner’s mother died.    Petitioner temporarily

left the wagon train to attend the funeral.    Petitioner’s father



2
    In a stipulation of settled issues the parties agreed to a
reduced deficiency of $15,541, and respondent conceded the
addition to tax under sec. 6651(a)(2). As a result of the
reduced deficiency, the additions to tax under secs. 6651(a)(1)
and 6654(a) were reduced to $2,873 and $663, respectively.
                                - 3 -

was also ill.    According to petitioner, he was “distraught” over

his mother’s death.

     Petitioner did not file a Federal income tax return for the

1996 tax year.   While on the wagon train, however, petitioner did

file returns for 1995 and 1997.

                             Discussion

Addition to Tax Under Section 6651(a)(1) for Failure To File

     If a Federal income tax return is not timely filed, an

addition to tax will be assessed “unless it is shown that such

failure is due to reasonable cause and not due to willful

neglect”.   Sec. 6651(a)(1).3   A delay is due to reasonable cause

if “the taxpayer exercised ordinary business care and prudence

and was nevertheless unable to file the return within the

prescribed time”.   Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.;

see also United States v. Boyle, 469 U.S. 241, 243 (1985).

     Petitioner argues that he failed to timely file his 1996
return because of the “emotional distress of my mother’s death,

my father’s ongoing illness and stressful job resulting in


3
    Petitioner has not argued that either sec. 7491(a) or (c)
applies to this case. Additionally, the record does not indicate
that respondent’s examination commenced after July 22, 1998.
Because sec. 7491 applies only to court proceedings arising from
examinations commencing after July 22, 1998, Internal Revenue
Service Restructuring & Reform Act of 1998, Pub. L. 105-206, sec.
3001, 112 Stat. 726, we conclude that neither sec. 7491(a) nor
(c) applies here to place the burden of proof and/or production
upon respondent. See Eddie Cordes, Inc. v. Commissioner, T.C.
Memo. 2002-125 n.13; Peacock v. Commissioner, T.C. Memo. 2002-
122.
                               - 4 -

hardship”.   Although we sympathize with petitioner over his

father’s ill health and the loss of his mother, a death in the

family some 9 months before the filing date generally does not

constitute reasonable cause for failing to file tax returns.      See

Hastings v. Commissioner, T.C. Memo. 1999-167; Radde v.

Commissioner, T.C. Memo. 1997-490.

     Additionally, the ability to continue performing daily

business operations negates grief as a reasonable cause.    See

Dickerson v. Commissioner, T.C. Memo. 1990-577; Fambrough v.

Commissioner, T.C. Memo. 1990-104.     Despite petitioner’s grief,

he continued his employment as wagon master on the wagon train.

Also, petitioner filed returns for 1995 and 1997, irrespective of

the logistical difficulties he faced while traveling on the wagon

train.   We find that petitioner did not have reasonable cause for

the failure to file his 1996 return, and respondent’s

determination as to the addition to tax under section 6651(a)(1)

is sustained.

Addition to Tax Under Section 6654(a) for Failure To Pay
Estimated Tax

     Section 6654(a) provides for an addition to tax “in the case

of any underpayment of estimated tax by an individual”.    This

addition to tax is mandatory unless petitioner shows that one of

the statutorily provided exceptions applies.    See sec. 6654(e);

Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980).     There is

no exception for reasonable cause or lack of willful neglect.
                                - 5 -

Estate of Ruben v. Commissioner, 33 T.C. 1071, 1072 (1960).

     Petitioner underpaid the estimated tax for 1996,4 and has

not shown that any of the statutory exceptions are applicable.

Respondent’s determination as to the addition to tax under

section 6654(a) is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be entered

                                        under Rule 155.




4
    Federal income taxes of $2,772 were withheld from
petitioner’s wages in 1996 and constitute estimated tax payments.
Sec. 6654(g)(1).
