                        T.C. Memo. 1996-201



                      UNITED STATES TAX COURT



 SALVADOR CHAVARRIA AND IRENE CHAVARRIA, DECEASED, Petitioners
        v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3833-95.                  Filed April 25, 1996.



     Towner S. Leeper, for petitioners.

     Elizabeth A. Owen, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     COHEN, Judge:   Respondent determined deficiencies in, and

additions to, petitioners’ Federal income taxes as follows:

                                          Addition to Tax
     Year            Deficiency           Sec. 6651(a)(1)

     1990             $ 7,875                   $1,922
     1991               6,229                     ---
     1992              16,198                    1,604
                               - 2 -

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

     After a concession by respondent, the issues remaining for

decision are:   (1) Whether petitioners are entitled to cost of

goods sold and expense deductions relating to petitioner Salvador

Chavarria’s Juarez, Mexico, used-car business and (2) whether

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

for failure to file timely their 1990 and 1992 Federal income tax

returns.

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioners resided in El Paso, Texas, at the time their petition

was filed.

     Salvador Chavarria (petitioner), a resident alien, owned a

sole proprietorship located in Juarez, Mexico, known as Autos Oti

(Autos Oti-Juarez).   Petitioner was also a 60-percent shareholder

in a Texas corporation that operated a business in El Paso,

Texas, known as Autos Oti, Inc. (Autos Oti-Texas).   Both Autos

Oti-Juarez and Autos Oti-Texas were in the used-car business.

     Petitioner filed Mexican income tax returns for 1990, 1991,

and 1992 that reported gross receipts, cost of goods sold, and

expenses from Autos Oti-Juarez.   Petitioner’s Mexican income tax
                                 - 3 -

returns were prepared by Franciso Javier Bencomo (Bencomo).     No

income or gross receipts from Autos Oti-Juarez were reported on

petitioners’ individual Federal income tax returns for 1990,

1991, and 1992.

     Autos Oti-Juarez was a cash business.    Petitioner paid cash

to purchase used cars for resale.    Salesmen were paid their

commissions on sales in cash.    No business records from Autos

Oti-Juarez were provided to respondent's agents at any time.

     Petitioners requested and received extensions to file their

1990 Federal individual income tax return, extending the due date

until October 15, 1991.   Petitioners’ 1990 return was filed a

year later on October 15, 1992.

     Petitioners requested and received extensions to file their

1991 Federal individual income tax return.    Petitioners timely

filed their 1991 return on October 15, 1992.

     Petitioners requested and received extensions to file their

1992 Federal individual income tax return, extending the due date

until October 15, 1993.   Petitioners’ 1992 return was filed on

November 23, 1993.

                                OPINION

     Respondent determined that petitioners had failed to report

income from Autos Oti-Juarez on their individual Federal income

tax returns for 1990, 1991, and 1992.     Petitioners do not dispute

respondent’s determination that this income should have been

reported on their returns.   Petitioners are seeking, however, to
                               - 4 -

offset cost of goods sold and expenses from the Autos Oti-Juarez

operation against the income from Autos Oti-Juarez.   Respondent

contends that petitioners have failed to substantiate the amounts

of the claimed items.   Petitioners argue that the Mexican income

tax returns are sufficient evidence when coupled with

petitioner’s testimony to substantiate these amounts.

     Petitioners bear the burden of proving that they are

entitled to the claimed cost of goods sold and deductions.    Rule

142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

Rockwell v. Commissioner, 512 F.2d 882, 886 (9th Cir. 1975),

affg. T.C. Memo. 1972-133.   Petitioners' Mexican tax returns are

not evidence of the amounts of these items.   Cf. Wilkinson v.

Commissioner, 71 T.C. 633, 639 (1979).   If petitioners can

establish that some expenditures have been made, absolute

certainty is not required, and the Court may approximate the

allowable expenditures.   Cohan v. Commissioner, 39 F.2d 540, 543-

544 (2d Cir. 1930); see Cooper v. Commissioner, T.C. Memo. 1989-

82; Fazio v. Commissioner, T.C. Memo. 1982-177.   However,

petitioners have offered nothing other than the amounts that they

claimed on their Mexican returns.

     The revenue agent who conducted an audit of Autos Oti-Texas

testified that petitioner stated during the examination that cars

purchased in the United States were driven to Mexico.   Petitioner

could not recall or even approximate how many cars were sold by

Autos Oti-Juarez during the years in issue.   No records from
                               - 5 -

Autos Oti-Juarez were produced by petitioner to substantiate the

claimed cost of goods sold or expenses.     Petitioner claims that

the records were never returned to him by Bencomo after the

Mexican tax returns were prepared.     Petitioner did not call

Bencomo at trial and did not explain his failure to do so.

Whatever the reason for the absence of records, however,

petitioner is not relieved of his burden of proof.     See

Malinowski v. Commissioner, 71 T.C. 1120, 1125 (1979).

Petitioner's claim that he lost money on rapidly increasing sales

is not persuasive.

     Petitioner has failed to offer credible evidence from which

we could make an approximation of Autos Oti-Juarez’s cost of

goods sold.   He did testify, however, that some detailing work on

cars sold in Mexico was required after the cars were purchased.

Some expenses of this nature undoubtedly were incurred.      We

estimate these expenses as $400 for 1990, $1,100 for 1991, and

$2,500 for 1992.

     Respondent also determined that petitioners are liable for

the section 6651(a)(1) addition to tax for 1990 and 1992.

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

timely a return, unless the taxpayer establishes that the failure

did not result from “willful neglect” and that the failure was

due to “reasonable cause”.   The addition to tax equals 5 percent

of the tax required to be shown on the return for the first

month, with an additional 5 percent for each additional month or
                               - 6 -

fraction of a month during which the failure to file continues,

not to exceed a maximum of 25 percent.     Sec. 6651(a)(1).

     “Willful neglect” has been interpreted to mean a conscious,

intentional failure or reckless indifference.      United States v.

Boyle, 469 U.S. 241, 245-246 (1985).     “Reasonable cause” requires

the taxpayers to demonstrate that they exercised ordinary

business care and prudence and were nonetheless unable to file a

return within the prescribed time.     Id. at 246; sec. 301.6651-

1(c)(1), Proced. & Admin. Regs.

     Petitioners bear the burden of proving that respondent’s

determination is incorrect.   Rule 142(a); Cluck v. Commissioner,

105 T.C. 324, 339 (1995).   Petitioners failed to offer any

evidence or explanation regarding the late filing of their 1990

and 1992 returns.   Thus, respondent’s determination that

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

for 1990 and 1992 will be sustained.

     To reflect the foregoing and a concession by respondent,

                                            Decision will be entered

                                       under Rule 155.
