                        T.C. Memo. 1997-110



                      UNITED STATES TAX COURT



  ESTATE OF JOSEPH G. MALTAMAN, DECEASED, PAUL J. CONSTANTINO,
              SPECIAL ADMINISTRATOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3845-95.                        Filed March 4, 1997.



     Donald Del Grande, for petitioner.

     Debra K. Estrem, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION



     WELLS, Judge:   Respondent determined a deficiency of

$103,932 in petitioner's Federal estate tax and an addition to

tax pursuant to section 6651(a)(1) of $25,983.     Unless otherwise

indicated, all section references are to the Internal Revenue
                               - 2 -

Code in effect on the date of the death of Joseph G. Maltaman

(decedent), and all Rule references are to the Tax Court Rules of

Practice and Procedure.   After concessions, the sole issue

remaining for decision is whether petitioner is liable for the

addition to tax for failure to file petitioner's estate tax

return timely.

                          FINDINGS OF FACT

     Some of the facts have been stipulated for trial pursuant to

Rule 91.   The parties' stipulations of fact are incorporated

herein by reference and are found as facts in the instant case.

     Decedent, a semiretired attorney, died intestate on May 28,

1990, in Daly City, California.   At the time the petition in the

instant case was filed, the address of the special administrator

of decedent's estate (decedent's estate or the estate), Paul J.

Constantino, was Burlingame, California.

     Decedent, who was 67 years of age at his death and had never

married, was the father of a child, Joseph C. Maltaman Muscat,

who was 3 or 4 years old at the time of decedent's death.     The

child's mother, Josephine Muscat, retained Frank Blum, an

attorney, to represent her in connection with the administration

of decedent's estate.   Mr. Blum sought to have Ms. Muscat named

special administrator of the estate, but, after hearings, on June

21, 1990, the Superior Court for the State of California in and

for the County of San Mateo (superior court) appointed as special

administrator Mr. Constantino, a practicing attorney who had no
                               - 3 -

prior relationship with decedent.    Mr. Constantino had previously

handled two or three estates with assets of at most $300,000

each.

     Mr. Constantino, Mr. Blum, and another individual conducted

a search for decedent's assets.   They contacted financial

institutions that might hold decedent's assets.     The process of

identifying decedent's assets was lengthy and difficult.     Clues

to the existence of assets had to be gleaned from decedent's

records.   Decedent maintained bank accounts and revocable trusts

under a variety of names.   Decedent also held funds in trust for

his clients in certain of those accounts, and ownership of the

funds had to be verified before they were released.

     Many of decedent's assets were not subject to probate

because they had passed to his child by contract at decedent's

death.   After the quantity of assets held in the name of

decedent's child was determined, Mr. Blum instituted a

guardianship proceeding for the benefit of decedent's child, and

a conservator, Ms. Muscat, was appointed on September 24, 1990.

Assets belonging to decedent's child were transferred by their

custodians directly into the guardianship proceeding.

     By late December 1990 or early January 1991, Mr. Constantino

became aware that a Federal estate tax return (petitioner's

estate tax return or the estate tax return) would be required

with respect to decedent's estate.     Mr. Constantino was also

aware that he had an obligation to file that return but had no
                                - 4 -

experience in preparing Federal estate tax returns.   Mr. Blum

asked Alfred Belotz, a public accountant since 1951, to prepare

the income tax return required in connection with the

guardianship proceeding, and Mr. Blum suggested to Mr.

Constantino that Mr. Belotz also prepare petitioner's estate tax

return.   Mr. Blum had known Mr. Belotz for 40 years and had

previously retained him to perform work with respect to estates

for which Mr. Blum was attorney.

     On January 17, 1991, Messrs. Blum, Belotz, and Constantino

met, and Mr. Constantino agreed at that time to engage Mr. Belotz

to prepare the estate's Federal tax returns.   Mr. Constantino was

made aware of the due date of petitioner's estate tax return,

which was February 28, 1991 (initial due date), and that due date

was discussed at the meeting.   Because of the difficulties

associated with identifying decedent's assets, it was decided to

seek an extension of the time for filing petitioner's estate tax

return.   Messrs. Constantino and Blum provided Mr. Belotz with

information concerning the assets includable in decedent's estate

and the estate's deductible expenses, from which the estate's

Federal estate tax liability could be estimated.

     Mr. Belotz prepared a Form 4768, Application for Extension

of Time to File U.S. Estate (and Generation-Skipping Transfer)

Tax Return and/or Pay Estate (and Generation-Skipping Transfer)

Tax(es), that requested an extension of the due date for filing

the estate tax return to August 28, 1991, 6 months after the
                                  - 5 -

initial due date, and estimated the estate's Federal estate tax

liability as $50,184.   Mr. Belotz transmitted the extension

application form to Mr. Blum, who in turn sent it to Mr.

Constantino.   Mr. Constantino signed the form, which was dated

February 6, 1991, and mailed it to the Internal Revenue Service

(Service) on February 21, 1991, which received it on February 23,

1991.   Because Mr. Constantino did not have sufficient probate

assets to pay the estimated estate tax due, funds subject to the

guardianship proceeding were used for that purpose.

     On April 29, 1991, the Service approved the requested

extension of the due date for filing the estate tax return, and

Mr. Belotz informed Mr. Constantino that the due date, as

extended, was August 28, 1991 (the extended due date).

     The following inventories and appraisals of assets were

filed with the superior court in connection with the guardianship

proceeding on the dates shown:

  Inventory                      Date             Appraisal

Partial No. 1             Apr.   15,    1991     $573,283.98
Complete and Final         May   28,    1991       41,724.53
Supplemental              June   17,    1991       96,630.99
Supplemental # 2          July   31,    1991      104,645.00
Supplemental # 3          Nov.   18,    1991        3,152.58
Supplemental # 4          Apr.   14,    1992       11,984.64

Mr. Blum provided Mr. Belotz with a copy of each of those

inventories shortly after the respective inventory was filed with

the superior court.   Mr. Blum also provided such information to

Mr. Constantino.
                                - 6 -

     During July 1991, Mr. Belotz began preparing petitioner's

estate tax return.   By letter dated July 5, 1991, Mr. Belotz

notified Mr. Constantino that Mr. Belotz required certain

information in order to prepare various tax returns, such as

details of funeral expenses, and attached a blank Form 706,

United States Estate (and Generation-Skipping Transfer) Tax

Return, with the items for which information was required circled

in red.   Mr. Constantino returned the estate tax return form with

a letter dated July 24, 1991, which stated that he was working on

the inventory.    A handwritten notation on the copy of the July 5,

1991, letter in the record states as follows: "Mailed a blank

copy of Form 706, circled items in red for Constantino to answer

or submit data!   He just signed the blank form, entered his S.S #

and mailed it all back to my office".

     During August 1991, Messrs. Constantino, Blum, and Belotz

discussed applying for a second and further extension of the due

date of the estate tax return because uncertainty still existed

as to whether all of decedent's assets had been identified.     When

Messrs. Constantino and Blum asked Mr. Belotz about this, Mr.

Belotz replied that, in all his experience, which included

preparing over 50 Federal estate tax returns, he had never before

had occasion to request a second extension of a due date.

Nonetheless, Mr. Belotz thought that there was good cause for

requesting a second extension given the problems with the estate.

Mr. Belotz, however, found no form for applying for such an
                                - 7 -

extension.   Mr. Belotz was not aware that the Service's

regulations provided that the maximum allowable extension of time

for filing a Federal estate tax return was 6 months beyond the

original due date of such a return.

     Pursuant to the direction of Mr. Constantino, Mr. Belotz

mailed to the Service a letter dated August 27, 1991, requesting

a second and further extension (second extension request) of the

due date for filing the estate tax return, citing "litigation and

the time consuming efforts in uncovering all assets" as the

grounds for the request.   Enclosed with the letter was a copy of

the Form 4768 that had been filed to request the initial due date

extension to August 28, 1991.   The letter and its enclosure were

received by the Service on August 30, 1991.     The Service denied

the second extension request on September 5, 1991, on the grounds

that "the maximum extension allowed by law is 6-months."

     By letter dated September 11, 1991, Mr. Belotz informed Mr.

Constantino of the Service's action.     In that letter, Mr. Belotz

stated:   "I would suggest that you submit the necessary

information and material to my office as soon as possible so that

we can start preparing the necessary forms to file on behalf of

the estate."    Mr. Belotz also informed Mr. Blum that the second

extension request had been denied.      Mr. Belotz was aware that an

addition to tax could be imposed if the estate tax return was not

filed timely.   At that time and when the return was filed, Mr.

Belotz did not consider that the addition to tax for failure to
                              - 8 -

file timely would be imposed on the estate because it appeared to

him that the estimated tax payment that had been made when

extension of the initial due date was requested exceeded the

amount of estate tax due from the estate.    After the second

extension request was denied, Mr. Constantino did not ask Mr.

Belotz to file petitioner's estate tax return as quickly as

possible, nor did Mr. Constantino do any research concerning the

consequences of filing untimely.

     At the time that the second extension request was denied,

Mr. Belotz had sufficient information concerning assets

includable in decedent's estate to prepare the estate tax return,

but lacked information concerning its expenses, which he sought

to obtain from Mr. Constantino.    At that time, it did not occur

to Mr. Belotz to file a return based on the information then

available to him.

     In a letter to Mr. Blum dated October 1, 1991, Mr. Belotz

complained that Mr. Constantino "has been uncooperative in

submitting the necessary information to prepare the federal and

state tax forms that are overdue."    In a letter to Mr.

Constantino dated October 14, 1991, Mr. Belotz wrote that he had

not received the necessary information from Mr. Constantino and

insisted that Mr. Constantino contact him.    Mr. Constantino

provided information on expenses at the end of October 1991.

During December 1991, Mr. Belotz requested further information

from Messrs. Constantino and Blum for preparation of petitioner's
                                - 9 -

estate tax return that was provided during December 1991 and

January 1992.

     Mr. Belotz completed preparation of petitioner's estate tax

return during January 1992.    The return was filed on January 24,

1992, and reported an overpayment of estate tax in the amount of

$2,867.



                               OPINION

     The only issue remaining to be decided in the instant case

is whether petitioner is liable for the addition to tax for

failure to file the estate tax return timely.   Section 6018(a)

generally provides that an estate tax return shall be filed where

the gross estate at death exceeds $600,000.   Section 6075(a)

provides that the return shall be filed within 9 months after the

date of a decedent's death.    In the instant case, decedent died

on May 28, 1990, and the estate tax return therefore was due on

or before February 28, 1991.   Sec. 20.6075-1, Estate Tax Regs.

Section 6081(a) permits the Secretary to grant a reasonable

extension of time for the filing of a return but provides that,

"Except in the case of taxpayers who are abroad, no such

extension shall be for more than 6 months."   The regulations

issued with respect to section 6081(a) provide that the total

allowable extension of time for filing an estate tax return is 6

months from the original due date of the return.   Sec. 20.6081-

1(a), Estate Tax Regs.   The due date of petitioner's estate tax
                               - 10 -

return was extended for the maximum period permitted by the

regulations, to August 28, 1991.   Petitioner's estate tax return,

however, was not filed until January 24, 1992, almost 5 months

after the extended due date.   Petitioner does not dispute that

petitioner's estate tax return was not filed timely, nor does

petitioner take issue with the denial of the second extension

request.1

     Section 6651(a)(1) provides that, in the case of failure to

file a tax return on the date prescribed for filing (including

any extension of time for filing), there shall be added to the

tax required to be shown on the return an amount equal to 5

percent of that tax for each month or fraction thereof that the

failure to file continues, not exceeding 25 percent in the

aggregate.   The addition to tax is mandatory unless it is shown

that the failure to file timely is due to reasonable cause and

not willful neglect.   Sec. 6651(a)(1); Estate of Cavenaugh v.

Commissioner, 100 T.C. 407, 426 (1993), affd. in part and revd.

in part on other grounds 51 F.3d 597 (5th Cir. 1995); Constantino

v. United States, 56 AFTR 2d 85-6551, at 85-6552, 85-2 USTC par.

13,629, at 90,429 (N.D. Cal. 1985).

     Reasonable cause for delay is established where a taxpayer

is unable to file timely despite the exercise of ordinary

1
     See Estate of La Meres v. Commissioner, 98 T.C. 294, 321
n.24 (1992) (citing Estate of Young v. Commissioner, T.C. Memo.
1983-686). Petitioner does not raise any issue concerning the
validity of the regulation.
                              - 11 -

business care and prudence.   Autin v. Commissioner, 102 T.C. 760,

776 (1994); sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

"Willful neglect" has been defined as a "conscious, intentional

failure or reckless indifference."     United States v. Boyle, 469

U.S. 241, 245 (1985).   Whether a failure to file timely is due to

reasonable cause and not willful neglect is a question of fact.

Id. at 249 n.8; Commissioner v. Walker, 326 F.2d 261, 264 (9th

Cir. 1964), affg. on this issue 37 T.C. 962 (1962); Autin v.

Commissioner, supra at 776.   Petitioner bears the burden of

proof.   Rule 142(a).

     Petitioner contends that the addition to tax should not be

imposed because the failure to file timely petitioner's estate

tax return was attributable to reasonable cause and not willful

neglect.   Petitioner argues that reasonable cause for the failure

to file timely is established in the instant case by:    (1) The

uncertainty as of the extended due date whether all of decedent's

assets had been discovered; (2) Mr. Belotz' erroneous advice to

Mr. Constantino that it was possible to secure a second extension

of the due date for filing the estate tax return; and (3) Mr.

Belotz' failure to advise Mr. Constantino either that an addition

to tax could be imposed for failure to file timely, or

alternatively that a return could have been prepared based on the

information available during August 1991.    Petitioner also

implies that Mr. Belotz' preoccupation with preparing a complete

and accurate return contributed to the failure to file timely.
                              - 12 -

Respondent, relying on United States v. Boyle, supra, contends

that Mr. Constantino had a duty to ascertain the due date of the

estate tax return and to file it timely, regardless of any

reliance on Mr. Belotz.   Respondent contends that none of the

reasons advanced by petitioner for the failure to file timely

establish that the delay was due to reasonable cause and not

willful neglect.   Respondent notes that the return was filed

almost 5 months after the extended due date even though Mr.

Constantino was aware that it was overdue.

     Although petitioner has established that the difficulties

experienced in identifying decedent's assets were unusual in the

experience of Mr. Constantino and Mr. Belotz, the uncertainty

that may have existed at the time of the extended due date

concerning the identification of all of those assets does not

constitute reasonable cause for the failure to file petitioner's

estate tax return timely.   At the time of the extended due date

of the estate tax return on August 28, 1991, Mr. Belotz had

sufficient information concerning assets includable in decedent's

estate to permit filing of that return.2   At trial, Mr. Belotz

admitted that the return could have been filed based on the

information that he possessed at the time the second extension

request was denied.


2
     As further discussed below, the information that Mr. Belotz
lacked related to the expenses of the estate, and Mr. Constantino
was tardy in providing that information to Mr. Belotz.
                                - 13 -

     Moreover, the regulations provide that, even if the

information available is not sufficient to permit preparation of

a complete estate tax return as of an extended due date for

filing such a return, a return that is as complete as possible

must be filed by that due date.    Sec. 20.6081-1(c), Estate Tax

Regs; see also sec. 20.6018-2, Estate Tax Regs.      Additionally,

the regulations permit the filing of supplemental information.

Sec. 20.6081-1(c), Estate Tax Regs.      Our cases are to the same

effect.   See Estate of Cavenaugh v. Commissioner, supra at 426;

Bank of the West v. Commissioner, 93 T.C. 462, 471 (1989); Estate

of Vriniotis v. Commissioner, 79 T.C. 298, 311 (1982); Estate of

Duttenhofer v. Commissioner, 49 T.C. 200, 206-207 (1967), affd.

410 F.2d 302 (6th cir. 1969).    The uncertainty upon which

petitioner relies would not have prevented the filing of a

reasonably accurate return within the time allowed.

Consequently, we reject petitioner's contention that the

uncertainty surrounding the identification of decedent's assets

constitutes reasonable cause for the failure to file petitioner's

estate tax return timely.

     We next consider petitioner's contention that reasonable

cause for failure to file timely is shown by Mr. Constantino's

purported reliance on Mr. Belotz' advice or lack of advice.      We

note that reliance on erroneous advice may furnish reasonable

cause for a failure to file timely in certain limited

circumstances.   United States v. Boyle, supra at 250; Estate of
                                - 14 -

La Meres v. Commissioner, 98 T.C. 294, 314-320 (1992).

Generally, the taxpayer must show that all relevant information

was supplied to a competent tax adviser and that good faith

reliance on the adviser's incorrect advice resulted in the

failure to file timely.     Zabolotny v. Commissioner, 97 T.C. 385,

401 (1991), affd. in part and revd. in part on other grounds 7

F.3d 774 (8th Cir. 1993).

     Petitioner first contends that the failure to file timely

was attributable to Mr. Belotz' erroneous advice to the effect

that it was possible to obtain a second extension of the due date

of the estate tax return.    We have held that reasonable reliance

on erroneous advice as to the date on which a return must be

filed constitutes reasonable cause for a failure to file timely.3

Estate of La Meres v. Commissioner, supra at 320.     In Estate of

La Meres, we held that reasonable reliance on erroneous advice

that a second extension of the due date for filing an estate tax

return could be obtained beyond a 6-month extension that had

already been granted constituted reasonable cause for a failure

to file timely.   Id. at 321-324.

     Although the facts in Estate of La Meres bear some

similarities to those of the instant case, they are

3
     Although the Supreme Court noted in United States v. Boyle,
469 U.S. 241, 251 n.9 (1985), that there is disagreement among
the lower Federal courts as to whether reliance on erroneous
advice concerning the due date of a return constitutes reasonable
cause for a failure to file timely, that Court expressly declined
to address the issue.
                                - 15 -

distinguishable in at least one important respect; to wit, in

Estate of La Meres, the Service did not timely communicate its

denial of the request for a second extension of the due date of

the return.   Id. at 321-322.   In the instant case, however, the

Service notified Mr. Belotz that the second extension request had

been denied, and he in turn notified Mr. Constantino of the

Service's action during mid-September 1991.   Even assuming

arguendo that Mr. Constantino reasonably relied on Mr. Belotz'

advice4 that it was possible to obtain a second extension of the

4
   We believe that it is questionable whether Mr. Constantino's
reliance on Mr. Belotz' advice with respect to the availability
of a second extension was reasonable. Even though Mr.
Constantino was told by Mr. Belotz that he believed there were
good grounds for requesting a second extension, Mr. Belotz
informed Mr. Constantino that, in Mr. Belotz' experience, which
included preparing over 50 Federal estate tax returns, he had
never had occasion to request a second extension of a due date.
Additionally, Mr. Belotz could not find a form for requesting
such an extension. Despite such circumstances, which might raise
a red flag as to whether a second extension was available, Mr.
Belotz apparently did not make any inquiries to ascertain whether
or not the Service would grant a second extension of the due date
for filing petitioner's estate tax return, and he admitted that
he was unaware that the regulations provided that the maximum
allowable extension of time for filing an estate tax return was 6
months beyond its original due date. We infer from such
circumstances that Mr. Belotz simply did not know whether or not
a second extension could be obtained, and that Mr. Constantino,
himself an attorney, should have been put on notice of Mr.
Belotz' lack of knowledge and should have required further
research of the issue, which would have revealed the lack of
availability of a second extension of the due date of the estate
tax return.
     Where reliance on an adviser is not reasonable, such
reliance does not afford reasonable cause for a failure to file
timely. Boles Trucking, Inc. v. United States, 77 F.3d 236, 242
(8th Cir. 1996); Zabolotny v. Commissioner, 97 T.C. 385, 401-402
(1991), affd. in part and revd. in part on other grounds 7 F.3d
                                                   (continued...)
                              - 16 -

due date for filing the estate tax return, reliance on that

advice certainly was neither reasonable nor in good faith after

Mr. Constantino learned that the Service had denied the second

extension request.   Hopping v. United States, 69 AFTR 2d 92-1464,

at 92-1474, 92-1 USTC par. 60,098, at 84,272 (S.D. Ind. 1992);

see also United States v. Kroll, 547 F.2d 393, 396 (7th Cir.

1977); Estate of DiRezza v. Commissioner, 78 T.C. 19, 34-35

(1982) (reliance on adviser not reasonable where executor learns

that return is past due).   Accordingly, Mr. Belotz' advice could

not furnish reasonable cause for the failure to file the estate

tax return during the more than 4-month period subsequent to the

time that Mr. Constantino learned that the second extension

request had been denied and that the return was overdue.

     Additionally, Messrs. Belotz and Constantino delayed

submission of the second extension request until the end of the

extended period allowed for filing the return.   The letter

requesting the second extension was dated August 27, 1991, 1 day

before the extended due date, and was received by the Service on

August 30, 1991.   Even assuming that it was possible that the

Service would grant the second extension request, it was almost


4
   (...continued)
774 (8th Cir. 1993); Irby v. Commissioner, 30 T.C. 1166, 1176
(1958), affd. per curiam 274 F.2d 208 (5th Cir. 1960); cf.
Freytag v. Commissioner, 89 T.C. 849, 888-889 (1987), affd. 904
F.2d 1011 (5th Cir. 1990), affd. 501 U.S. 868 (1991) (reliance on
adviser must be reasonable in order to show underpayment of tax
is not attributable to negligence).
                              - 17 -

certain that petitioner's estate tax return would not be filed

timely in the event the Service denied the request, and they

apparently were willing to assume that risk.

     Moreover, it appears to us, and respondent suggests on

brief, that the Service would not have treated the estate tax

return as late had it been filed within 10 days of September 5,

1991, the date the second extension request was denied.   Rev.

Rul. 64-214, 1964-2 C.B. 472; see Estate of La Meres v.

Commissioner, supra at 305 n.6.   At approximately that time,

i.e., during mid-September 1991, Mr. Constantino learned that the

second extension request had been denied.   However, despite being

aware that the second extension request had been denied and that

the return was overdue, Mr. Constantino did not direct Mr. Belotz

to file the return as quickly as possible, although Mr. Belotz

had sufficient information to do so at that time.   Moreover, it

was Mr. Constantino himself who was tardy in providing Mr. Belotz

with the information that was apparently needed to complete the

preparation of the return.   Mr. Constantino thus contributed in

large measure to the additional delay in filing the return.

     Petitioner's further arguments focus on Mr. Belotz' alleged

failure to advise, rather than on his giving of erroneous advice.

We note that generally there must be some advice on which a

taxpayer has relied in order to establish reasonable cause, and

the absence of advice affords the taxpayer nothing on which to

rely.   Eastern Inv. Corp. v. United States, 49 F.3d 651, 656
                              - 18 -

(10th Cir. 1995); Denenberg v. United States, 920 F.2d 301, 307

(5th Cir. 1991); Estate of Newton v. Commissioner, T.C. Memo.

1990-208; cf. Coleman v. Commissioner, T.C. Memo. 1990-511.

     Petitioner claims that Mr. Belotz failed to advise Mr.

Constantino that an addition to tax could be imposed for failure

to file timely.5   We, however, are not persuaded that Mr.

Constantino, an attorney who presumably encountered deadlines in

the course of his practice and had to file tax returns in

connection with his personal affairs, had no inkling that some

sanction could be imposed for failure to comply with a filing

deadline.6   Mr. Belotz testified that he believed that anyone who

had dealt with the Service would know that an addition to tax

could be imposed for failure to "do things correctly and on

time".   Nonetheless, Mr. Constantino was aware that filing an

estate tax return was required and of the date by which that

return had to be filed.   Even if no addition to tax were provided

for failure to file timely, Mr. Constantino was required to file

the return by its due date.   That he may not have been fully




5
     Petitioner admits that Mr. Constantino never asked Mr.
Belotz about the addition to tax for failure to file timely after
the second extension request was denied.
6
     Even if Mr. Constantino were not aware that an addition to
tax could be imposed for failing to file timely, ignorance of the
law would not excuse such a failure. Mayflower Inv. Co. v.
Commissioner, 24 T.C. 729, 733 (1955), affd. 239 F.2d 624 (5th
Cir. 1956).
                               - 19 -

advised of the consequences of not complying with his obligation

does not excuse his failure to do so.

       Petitioner's contention that Mr. Belotz did not advise Mr.

Constantino that a return could have been filed based on

information available during August 1991 also does not establish

that there was reasonable cause for the failure to file timely.

Mr. Constantino was well aware of the due date of the return and

of his responsibility to file it.    If Mr. Constantino had

erroneously believed that a return must be complete before it may

be filed, that belief alone would not constitute reasonable cause

for failing to file timely.    Niedringhaus v. Commissioner, 99

T.C. 202, 221 (1992).    Mr. Belotz' failure to correct that belief

also does not establish reasonable cause.    As noted above, a

showing of reasonable cause based on reliance on an adviser must

be premised upon the giving of substantive advice to the

taxpayer, and a taxpayer who has not been given advice has

nothing upon which to reasonably rely.    Eastern Inv. Corp. v.

United States, supra at 656; Denenberg v. United States, supra at

307.

       At the base of petitioner's arguments with respect to Mr.

Belotz' failure to give advice is the contention that Mr. Belotz

did not work hard enough to get Mr. Constantino to file

petitioner's estate tax return timely.    Because the timely filing

of the return was a matter for which Mr. Constantino was

responsible with or without Mr. Belotz' prodding, we find that
                              - 20 -

contention less than persuasive to establish reasonable cause for

Mr. Constantino's failure to discharge that duty.

     Similarly, petitioner's suggestion that the late filing was

attributable to Mr. Belotz' concern that a return must be

complete is without merit.   An agent's unwillingness to file a

return timely does not furnish reasonable cause for that failure.

Estate of Archer v. Commissioner, T.C. Memo. 1984-57; see

Denenberg v. United States, supra at 306-307.    Moreover, the

record indicates that, in large measure, Mr. Constantino left

matters concerning petitioner's estate tax return to Mr. Belotz.

The duty to file a return is nondelegable, and, if that

responsibility is shifted to an agent, the taxpayer must accept

the consequences of shortcomings in the performance of that duty

by the agent.   United States v. Boyle, 469 U.S. at 249-250;

Conklin Bros., Inc. v. United States, 986 F.2d 315, 317-318 (9th

Cir. 1993); Ferrando v. United States, 245 F.2d 582, 589 (9th

Cir. 1957).   Mr. Belotz indicated in his testimony that he did

not believe that the addition to tax for failure to file timely

would be imposed on the estate because the amount of its payment

of estimated estate tax was larger than the estate tax liability

that was ultimately reported in its return.7    Mr. Belotz' belief,

7
   If the amount of petitioner's estate tax had not exceeded the
payment that had been made when the initial extension of the due
date was requested, no additional liability on account of the
failure to file timely would have arisen because sec. 6651(b)(1)
provides that, for purposes of calculating the addition, the
                                                   (continued...)
                              - 21 -

however, has proven to be in error, as petitioner concedes that

an additional amount of estate tax is due.   Even if that belief

prompted Mr. Belotz to delay preparation of the estate tax return

until the compilation of necessary information was complete,

petitioner must bear the consequences of that mistaken belief.

Jackson v. Commissioner, 86 T.C. 492, 538-539 (1986), affd. 864

F.2d 1521 (10th Cir. 1989).

     Moreover, it appears that the responsibility for the delay

in Mr. Belotz' receipt of the information he considered necessary

for the preparation of the return lies considerably with Mr.

Constantino.   The record indicates that beginning at least during

July 1991, Mr. Belotz sought information concerning, inter alia,

expenses of the estate that Mr. Constantino was slow to provide

and that Mr. Constantino's tardiness in responding continued even

after the return became overdue.   Mr. Constantino provided such

information at the end of October 1991 and as late as January

1992, the month that the return was filed.   Mr. Constantino

provided the information as to expenses only after repeated

prodding by Mr. Belotz.   Indeed, Mr. Belotz appears to have been

more concerned with filing the return as quickly as possible once

it became overdue than Mr. Constantino appears to have been.



7
   (...continued)
amount of tax required to be shown on the return is to be reduced
by amounts paid on or before the date prescribed for payment of
the tax.
                             - 22 -

     Based on the record as a whole, we conclude that petitioner

has failed to establish that the failure to file timely was due

to reasonable cause.8

     To reflect the foregoing, concessions, and the claim of

additional expenses,

                                        Decision will be entered

                                   under Rule 155.




8
     We note that Mr. Constantino was an attorney who was
appointed by the superior court to administer the estate. While
one court has indicated that a professional executor should be
held to a stricter standard than a layperson for purposes of sec.
6651(a), Estate of Cox v. United States, 637 F. Supp. 1112, 1115
(S.D. Fla. 1986), we need not apply such a standard to reach our
result herein. Even using the standards applicable to
laypersons, we find that petitioner has failed to demonstrate
that the failure to file timely was due to reasonable cause.
