                  T.C. Summary Opinion 2009-146



                     UNITED STATES TAX COURT



                    LEE THOMAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 142-08S.               Filed September 21, 2009.



     Lee Thomas, pro se.

     Richard J. Hassebrock, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
        Unless otherwise indicated, all 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 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined deficiencies in petitioner’s Federal

income taxes for 2004 and 2005 of $1,658 and $20,268,

respectively, and an addition to tax for 2005 of $5,067 for

failure to timely file a tax return.

     After concessions,2 the only issue remaining for decision is

whether petitioner is liable for the addition to tax for failure

to timely file under section 6651(a)(1) for 2005.   We hold that

petitioner is liable for the addition to tax.

                            Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioner resided in the State of Kentucky when the

petition was filed.

     Petitioner’s Form 1040, U.S. Individual Income Tax Return,

for 2005 was completed by his accountant.   The accountant had

been handling petitioner’s taxes for about 15 years.    Petitioner,

through his accountant, requested and was granted an extension of

time to file his Federal income tax return for 2005.    The return


     2
        Petitioner conceded that he is liable for the deficiency
determined by respondent for 2004 of $1,658. The parties agreed
that for 2005, petitioner is entitled only to a loss of $6,962
rather than the $268,533 loss claimed on Schedule E, Supplemental
Income and Loss, of the 2005 tax return.
                                 - 3 -

due date was thereby extended from April 15 to October 15, 2006.

Petitioner’s 2005 tax return was filed February 24, 2007.

     Petitioner’s newspaper business closed its doors during

2004.    In 2005 petitioner continued to wrap up the newspaper’s

business matters, and he also entered a new line of work; namely,

truck driving.

     After the extension to file was granted and before the

return was filed, petitioner and his accountant had little or no

communication.    Petitioner was frequently on the road, and he

assumed that his accountant had requested a subsequent extension

to file.3

     In February 2007 petitioner contacted his accountant

regarding the 2005 tax return.    The accountant informed

petitioner that the tax return was prepared and awaiting his

signature and had been prepared for some time.    Petitioner then

drove to the accountant’s office and signed the return on

February 21, 2007.4




     3
        Sec. 6081(a) authorizes the IRS to grant a “reasonable
extension of time for filing any return”. Except in the case of
a taxpayer who is abroad, no extension shall be for more than 6
months. Id.
     4
        As a paid preparer, the accountant also signed the
return; his signature was accompanied by the date Aug. 30, 2006.
                                 - 4 -

                             Discussion

     Section 7491(c) provides that the Commissioner bears the

burden of production with respect to an addition to tax.    To meet

this burden, the Commissioner must introduce evidence indicating

that it is appropriate to impose the relevant addition to tax.

Higbee v. Commissioner, 116 T.C. 438, 446 (2001).    Once the

Commissioner meets this burden, the taxpayer bears the burden to

produce evidence regarding reasonable cause.    Id. at 446-447.

Respondent has met his burden.

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

file a return by its due date.    The addition equals 5 percent for

each month or fraction thereof that the return is late, not to

exceed 25 percent.   Id.   To escape the addition to tax, the

taxpayer must prove that such failure was due to reasonable cause

and not due to willful neglect.     Id.

     The term “willful neglect” may be read as meaning conscious,

intentional failure or reckless indifference.    United States v.

Boyle, 469 U.S. 241, 245 (1985).    Respondent does not contend

that petitioner’s failure to file was willful or reckless;

therefore, we consider only whether petitioner had reasonable

cause for failing to meet the deadline.

     A showing of reasonable cause requires taxpayers to

demonstrate they exercised “ordinary business care and prudence”

but were nevertheless unable to file the return within the
                                - 5 -

prescribed time.    Id. at 246; sec. 301.6651-1(c)(1), Proced. &

Admin. Regs.   However, the failure to timely file “a tax return

is not excused by the taxpayer’s reliance on an agent, and such

reliance is not ‘reasonable cause’” for late filing under section

6651(a)(1).    United States v. Boyle, supra at 252 (taxpayers have

a personal and nondelegable duty to timely file a return;

reliance on an accountant does not provide reasonable cause for

an untimely filing).

     Petitioner agrees that the 2005 tax return was not timely

filed.   Nevertheless, he argues against the addition to tax on

the basis that he relied on his accountant to inform him when the

return was prepared.   Moreover, petitioner assumed that his

accountant had requested an additional extension of time to file.

     Although we are sympathetic to petitioner’s position, given

his reliance on his accountant, we are constrained to sustain

respondent’s determination on this issue.   Thus, petitioner is

liable for the addition to tax under section 6651(a)(1).
                                 - 6 -

                           Conclusion

     We have considered all of the arguments made by petitioner,

and, to the extent that we have not specifically addressed them,

we conclude that they do not support a holding contrary to that

reached herein.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
