Estate of Frank Duttenhofer, Deceased, Albert J. Uhlenbrock and William Duttenhofer, Co-Executors v. Commissioner of Internal Revenue

PER CURIAM.

On consideration of the briefs and records filed in the above-styled appeal, and the memorandum opinion of the Tax Court, filed December 13, 1967, 49 T.C. 200 , we affirm the judgment of the Tax Court.

In this case there was a delay of over five months in the filing of the estate tax return beyond the 15-month period allowed by statute. The Tax Court found on the facts in this case that neither the litigation in which the estate was involved nor the executprs’ reliance upon their attorney constituted “reasonable cause” for failure either to file the return or make timely request for an extension.

In Fisk v. Commissioner of Internal Revenue, 203 F.2d 358 (6th Cir. 1953), a penalty was assessed for an estate tax return which was mailed on the last day allowed by the statute but was received one day late. This court reversed, holding that the delay there involved was an innocent error made despite reasonable care. A five-month delay does not appear to us to present a comparable situation.

We cannot hold on this record that the findings of fact of the Tax Court in this case are “clearly erroneous.” Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960).