277 F2d 153 Sami v. United States

277 F.2d 153

60-1 USTC P 9355

Fannie SAMI, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17856.

United States Court of Appeals Fifth Circuit.

March 24, 1960.

Kurt Wellisch, Miami, Fla., for appellant.

Charles K. Rice, Asst. Atty. Gen., Abbott Mannie Sellers, Karl Schmeidler, Robert N. Anderson, Meyer Rothwacks, Lee A. Jackson, Dept. of Justice, Washington, D.C., James L. Guilmartin, U.S. Atty., Lavinia L. Redd, Asst. U.S. Atty., Miami, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

PER CURIAM.

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1

Although the taxpayer filed declarations of estimated tax in previous years and her income far exceeded the statutory amount requiring a declaration to be filed for 1950, she failed to file any declaration for that year. Section 294(d)(1)(A) of the Internal Revenue Code of 1939, 26 U.S.C.1952 ed. 294(d)(1) (A), 26 U.S.C.A. 294(d)(1)(A), provides for an addition to the tax in such case 'unless such failure is shown to the satisfacition of the Commissioner to be due to reasonable cause and not to willful neglect'. Whether the taxpayer's claimed reliance upon her son for the filing of the declaration constituted such reasonable cause clearly presented a question of fact. See Coates v. Commissioner, 8 Cir., 234 F.2d 459, 462-463. There is no evidence that her accountant advised that a declaration should not be filed for 1950. Clearly the district court was correct in upholding the addition to the tax under Section 294(d)(1)(A).

2

The appellee concedes that the recent decision in Commissioner v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127, bars imposition of a further addition to the tax for the year 1950 for substantial underestimation of estimated taxes under Section 294(d)(2) of the 1939 Code, 26 U.S.C.1952 ed. 294(d)(2), 26 U.S.C.A. 294(d)(2). The judgment of the district court is accordingly

3

Corrected and affirmed.