                          T.C. Memo. 1997-351



                       UNITED STATES TAX COURT



                OTELIO S. RANDALL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 19504-95.                        Filed July 30, 1997.


     Towner Shields Leeper, John Edward Leeper, and Robert I.

White, for petitioner.

     Nancy Graml, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     CHIECHI, Judge:     Respondent determined the following defi-

ciencies in, and additions to, petitioner's Federal income tax:

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

          1991    $68,440          $11,214         $2,228
          1992     53,582            6,951          1,087


1
   All section references are to the Internal Revenue Code in
effect for the years at issue. All Rule references are to the
Tax Court Rules of Practice and Procedure.
                                - 2 -

     The sole issue remaining for decision is whether petitioner

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

each of the years at issue.    We hold that he is.

                         FINDINGS OF FACT

     Some of the facts were established for purposes of this case

pursuant to this Court's Order under Rule 91(f) dated September

18, 1996.2

     Petitioner, who at all relevant times was a cardiologist

employed by Howard University and Howard University Hospital in

Washington, D.C., resided in Washington, D.C., at the time the

petition was filed.

     Sometime during the spring of 1992, petitioner met Richard

Paul Todar (Mr. Todar), a certified public accountant, and asked

him to prepare his U.S. individual income tax return (return) for

1991.   At the time they met, petitioner and Mr. Todar both had a

financial interest in a small emergency health clinic (clinic)

located in Houston, Texas.    With the assistance of Mr. Todar,

petitioner requested and was granted an extension of time until

August 15, 1992, within which to file his 1991 return.

     Sometime after April 15, 1992, petitioner provided some

records to Mr. Todar with respect to Mr. Todar's preparation of


2
   Facts virtually identical to those deemed established under
Rule 91(f) were set forth in a request for admissions filed by
respondent on July 9, 1996. Each matter set forth in that
request is deemed admitted because petitioner did not file a
response thereto. See Rule 90(c).
                                 - 3 -

petitioner's 1991 return.   Mr. Todar kept those records at the

clinic.   Sometime in July 1992, certain of those records were

destroyed or otherwise rendered illegible (destroyed records)

when the clinic was vandalized (clinic break-in).   Mr. Todar

immediately notified petitioner of the clinic break-in and

advised him to attempt to duplicate the destroyed records.   Most

of those records consisted of copies of checks, the originals of

which petitioner had retained and could copy again for Mr. Todar.

The balance of the destroyed records consisted principally of

receipts from various contractors (contractor receipts) that had

built a commercial kitchen at petitioner's residence for his

wife, who was engaged during 1991 and 1992 in certain catering

activities.   Mr. Todar advised petitioner after the clinic break-

in to contact those contractors in order to obtain copies of the

contractor receipts that had been destroyed or letters from those

contractors concerning their construction work for petitioner's

wife.   However, petitioner obtained few, if any, of such copies

or letters.

     Petitioner knew at the time that Mr. Todar notified him of

the clinic break-in that he had until August 15, 1992, within

which to file his 1991 return.    Thereafter, petitioner, with the

assistance of Mr. Todar, requested and received a second exten-

sion of time until October 15, 1992, within which to file that

return.
                               - 4 -

      Shortly after Mr. Todar notified petitioner of the clinic

break-in and asked him to attempt to duplicate the destroyed

records, petitioner provided Mr. Todar with all of the informa-

tion that he needed to prepare petitioner's 1991 return, except

the contractor receipts and certain other records relating to the

catering activities of his wife during 1991.

      Petitioner requested and was granted one extension of time

until August 15, 1993, within which to file his 1992 return.

      Petitioner did not file returns for the taxable years 1991

and 1992 prior to the issuance of the notice of deficiency

(notice) on June 30, 1995.   On September 28, 1995, and September

29, 1995, respectively, respondent received Forms 1040 (U.S.

Individual Income Tax Returns) for taxable years 1991 and 1992

that were signed by petitioner and his wife as the taxpayers and

by Mr. Todar as the return preparer.3

      At least as late as the summer of 1996, petitioner had

available original records relating to certain deductions claimed

in his 1991 and 1992 returns with respect to his wife's catering

activities.   Those original records were misplaced by petitioner

and/or his wife sometime during and/or after the summer of 1996.

      During 1996, petitioner produced copies from originals of

American Express and similar monthly statements and receipts that

were relevant to his 1991 and 1992 returns.


3
    Petitioner's wife is not a petitioner in this case.
                               - 5 -

     Petitioner relied on Mr. Todar to file timely his 1991 and

1992 returns.   Prior to the respective due dates of petitioner's

1991 and 1992 returns, petitioner was aware of those due dates

and knew that he had a duty to file timely those returns.

     Mr. Todar had enough information available to prepare

petitioner's 1991 and 1992 returns so that petitioner could

timely file those returns.   After timely filing his returns for

1991 and 1992, petitioner could have filed amended returns for

those years in order to reflect any additional, pertinent infor-

mation that he was able to obtain regarding his wife's catering

activities.

                              OPINION

     Petitioner has the burden to show that respondent's determi-

nations in the notice with respect to the additions to tax under

section 6651(a)(1) are in error.   Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

     Section 6651(a)(1) imposes an addition to tax for failure to

file timely a required return "unless it is shown that such

failure is due to reasonable cause and not due to willful ne-

glect".   Consequently, in order to avoid the additions to tax in

this case, petitioner must establish that his failure to file

timely (1) was due to reasonable cause and (2) did not result

from willful neglect.   Sec. 6651(a); United States v. Boyle, 469

U.S. 241, 245 (1985).
                              - 6 -

     A failure to file timely is due to reasonable cause for

purposes of section 6651 if the taxpayer exercised ordinary

business care and prudence and nevertheless was unable to file

the return within the prescribed time.   Sec. 301.6651-1(c)(1),

Proced. & Admin. Regs.; see McMahan v. Commissioner, 114 F.3d

366, 368 (2d Cir. 1997), affg. T.C. Memo. 1995-547.   Willful

neglect is defined for purposes of section 6651 as a conscious,

intentional failure or reckless indifference.   United States v.

Boyle, supra at 245.

     As we understand it,4 petitioner contends that he did not

file timely his returns for 1991 and 1992 because he relied on

Mr. Todar who advised him not to file those returns until all the

information relating to deductions that he could claim with

respect to his wife's catering activities was available.   In

essence, it is petitioner's position that he should be excused

from the additions to tax under section 6651(a)(1) because he was

acting on what he believed to be his accountant's advice in not

timely filing the returns in question.

     Based on our examination of the entire record before us, we

find that petitioner did not exercise ordinary business care and

prudence in not timely filing his 1991 and 1992 returns.   Prior

4
   Petitioner submitted no trial memorandum in this case as
required by the Court's standing pretrial order. Nor did peti-
tioner submit post-trial briefs as directed by the Court at the
conclusion of the trial. We glean petitioner's position in this
case from the testimony of Mr. Todar, the only witness presented
at trial by petitioner.
                                - 7 -

to the respective due dates of those returns, petitioner was

aware of those due dates and knew that he had a duty to file

timely those returns.   The record discloses no valid reason why

petitioner, with the assistance of his accountant Mr. Todar,

could not have prepared and timely filed his 1991 and 1992

returns on the basis of the information that petitioner had

available at the time those returns were due.   Thereafter,

petitioner could have filed amended returns in order to reflect

any additional information that he obtained regarding his wife's

catering activities.    See Estate of Vriniotis v. Commissioner, 79

T.C. 298, 311 (1982); Beck Chemical Equip. Corp. v. Commissioner,

27 T.C. 840, 859-860 (1957).

     Indeed, Mr. Todar testified that he could have prepared

petitioner's 1991 and 1992 returns on the basis of the informa-

tion that petitioner provided to him and that those returns could

have thereafter been amended in the event that petitioner gave

him additional information relating to his wife's catering

activities.   While Mr. Todar also testified that any such returns

would not have been complete, and therefore would not have been

accurate, because not all of the information relating to the

catering activities of petitioner's wife was available at the

time those returns were due,5 on the present record, we do not

5
   Under petitioner's position, as long as a taxpayer did not
have all of the information that was needed to prepare a com-
plete, and therefore accurate, return, he or she will never have
                                                   (continued...)
                               - 8 -

find that excuse for petitioner's failure to file timely his 1991

and 1992 returns to be reasonable cause for purposes of section

6651(a)(1).6

     Based on our review of the entire record in this case, we

find that petitioner has not satisfied his burden of proving that

his failure to file timely his 1991 and 1992 returns was due to

reasonable cause and not due to willful neglect.     See United

States v. Boyle, supra; Estate of Vriniotis v. Commissioner,

supra.   Accordingly, we find that petitioner is liable for the

additions to tax under section 6651(a)(1) for 1991 and 1992.7

     To reflect the foregoing and the concessions of the parties,



                                            Decision will be entered

                                       under Rule 155.




5
 (...continued)
to file a return and yet will not be liable for the addition to
tax under sec. 6651(a)(1). We disagree.
6
   Moreover, contrary to the suggestion of petitioner, on the
instant record, we find that he had adequate time within which to
obtain duplicate copies of, or otherwise to reconstruct, contrac-
tor receipts relating to his wife's catering activities.
7
   The amounts of such additions to tax, which must take into
account the concessions of the parties on other issues, shall be
determined by the parties in the Rule 155 computation.
