1982 U.S. Tax Ct. LEXIS 151">*169 78 T.C. 19">*27 In view of the foregoing, there can be no question that the additional tax liability was assessed as a deficiency. However, one could argue that there was no deficiency when the statutory notice was sent because at that time the additional tax liability constituted an amount previously assessed as a deficiency which, when added to the amount of tax shown on the return, equaled the tax imposed. One inclined to so argue might then conclude that the addition involved herein is not attributable to a deficiency and hence that the Court lacks jurisdiction. Any such conclusion, however, would not be well founded.

Whether a deficiency in the tax exists when the statutory notice is sent is irrelevant for purposes of section 6659(b)(1). We think the section requires that the addition be attributable to tax which has been subjected to the deficiency procedures. See H. Rept. 1217, 86th Cong., 2d Sess. (1960), 1960-1 C.B. 840, 842-843, discussed hereinafter. It distinguishes such an addition from one which is attributable to the tax shown on the return. Only these two categories are recognized. See sec. 301.6659-1(c)(1), Proced. & Admin. 1982 U.S. Tax Ct. LEXIS 151">*170 Regs. Accordingly, an addition attributable to an amount previously assessed as a deficiency is just as much within the intendment of section 6659(b)(1) as an addition attributable to a deficiency determined as of the date of issuance of the statutory notice. In both cases, the addition is determined (i.e., measured) by tax which is subject to the deficiency procedures and not by the tax shown on the return. In other words, it is the type of assessment, i.e., self-assessment (liability per the return) versus deficiency assessment (additional liability), which is determinative for purposes of section 6659(b)(1). Cf. Fendler v. Commissioner, 441 F.2d 1101">441 F.2d 1101 (9th Cir. 1971).

This view is supported by the legislative history ¹⁵ of section 6659(b)(1).

Under1982 U.S. Tax Ct. LEXIS 151">*171 the Internal Revenue Code of 1939, additions to tax for late filing were subject to the deficiency procedures if they were measured by a deficiency in tax. However, if they were measured by the tax shown on the return, the deficiency procedures were not applicable. Sec. 291(a), I.R.C. 1939; United States v. Erie Forge Co., 191 F.2d 627">191 F.2d 627 (3d Cir. 1951). See also Granquist v. Hackleman, 264 F.2d 9">264 F.2d 9 (9th Cir. 1959), as it relates to the 1939 Code. Thus, in Erie Forge, the Third Circuit stated that --

the Code logically provides that where the penalty is measured by a tax deficiency it is subject to the same procedure as the deficiency, for if the deficiency is revised by the Tax Court the penalty will be revised along with it. However, where the penalty is based upon an amount which the taxpayer has admitted [on his return] to be due, the Code prescribes the simpler method of collection first outlined [summary assessment]. [191 F.2d 627">United States v. Erie Forge Co., supra at 630. Emphasis added.]

Section 6659, as enacted by the Internal Revenue Code of 1954, was intended to conform to the 1982 U.S. Tax Ct. LEXIS 151">*172 rules under existing law. S. Rept. 1622, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess. 595 (1954); H. Rept. 1337, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess. A420 (1954). However, in Granquist v. Hackleman, 264 F.2d 9">264 F.2d 9 (9th Cir. 1959), and Strawberry Hill Press, Inc. v. Scanlon, 172 F. Supp. 335">172 F. Supp. 335 (E.D. N.Y. 1959), affd. per curiam 273 F.2d 306">273 F.2d 306 (2d Cir. 1959), the courts held that under the 1954 Code all additions to tax for late filing were subject to the deficiency procedures. Cf. Enochs v. Muse, 270 F.2d 528">270 F.2d 528 (5th Cir. 1959), holding that under the 1954 Code, additions to tax for failure by individuals to pay estimated income tax were subject to the deficiency procedures. These decisions placed a serious administrative burden on the Commissioner because they forced him to examine many returns, which might not otherwise be examined, in order to insure that "there was no deficiency in tax which might be barred from later assessment because of the restrictions on the issuance of additional 90-day letters under section 6212(c)." H. Rept. 1982 U.S. Tax Ct. LEXIS 151">*173 1217, 86th Cong., 2d Sess. (1960), 1960-1 C.B. 840, 841-842. See also S. Rept. 1098, 86th Cong., 2d Sess. (1960), 1960-1 C.B. 843, 845; Johnston v. Commissioner, 429 F.2d 804">429 F.2d 804, 429 F.2d 804">806 (6th Cir. 1970).

In 1960, Congress responded by amending section6659 to 78 T.C. 19">*47 read essentially as it does today. Section 1, Act of May 14, 1960, Pub. L. 86-470, 74 Stat. 132. The committee reports clearly indicate that Congress intended to legislatively overrule Granquist and Strawberry Hill and preserve the distinction between additions attributable to the tax shown on the return and those attributable to tax subject to the deficiency procedures. Thus, the House Ways and Means Committee report states as follows:

The first section of the bill amends section 6659(b) of the Internal Revenue Code of 1954 so as to provide the procedure to be followed in assessing certain additions to tax. Under present law, section 6659(a) states that, except as otherwise provided, additions to tax * * * shall be paid upon notice and demand and shall be assessed, collected, and paid in the same manner as taxes, 1982 U.S. Tax Ct. LEXIS 151">*174 and any reference in the code to "tax" imposed by the code also refers to such additions to tax * * * Under the amendment, the deficiency procedures * * * in the case of income, estate, and gift taxes are made inapplicable to certain additions to tax.

Section 6659(b), as amended by the bill, provides, with two exceptions, that subsection (a) of section 6659 shall not apply for purposes of applying the deficiency procedures * * * to any addition to tax under section 6651 (relating to failure to file return) * * *

Under the first exception, paragraph (1) of section 6659(b) provides that, in the case of an addition to tax under section 6651 for failure to file a timely return, the deficiency procedures will apply to that portion of such addition which is attributable to a deficiency in tax described in section 6211. Therefore, if the tax (other than additions to tax) is subject to the deficiency procedures, the additions to tax attributable thereto are likewise subject to the deficiency procedures. The deficiency procedures do not apply to any addition to tax under section 6651 which is attributable to the tax shown on the return. * * 1982 U.S. Tax Ct. LEXIS 151">*175 *

* * * *

These two exceptions are consistent with present procedural practices.

[H. Rept. 1217, 86th Cong., 2d Sess. (1960), 1960-1 C.B. 840, 842-843. Emphasis added.]

See also S. Rept. 1098, 86th Cong., 2d Sess. (1960), 1960-1 C.B. 843, 845-846.

The language underscored above demonstrates that Congress intended to exclude from the deficiency procedures only those additions which are attributable to the tax shown on the return. The report specifically states that "if the tax * * * is subject to the deficiency procedures, the additions to tax attributable thereto are likewise subject to the deficiency 78 T.C. 19">*30 procedures." Certainly, this must mean that section 6659(b)(1) is applicable to an addition which is attributable to an additional tax liability proposed by the Commissioner and agreed to by the taxpayer. Such a liability is unquestionably subject to the deficiency procedures, including section 6213(d). Accordingly, the addition attributable thereto is also subject to those procedures. The fact that the additional tax liability is assessed pursuant to a waiver prior to the issuance of the statutory notice is therefore1982 U.S. Tax Ct. LEXIS 151">*176 irrelevant. What is relevant is the fact that the addition is attributable to tax which has been subjected to the deficiency procedures rather than to the tax shown on the return.

Our view is further supported by the fact that a contrary conclusion would have negative administrative and policy impact.

First, if our jurisdiction over late-filing additions turned on whether a deficiency in tax existed at the time that the statutory notice was sent, any petitioner could confer jurisdiction on this Court by the simple expedient of postponing concession of the tax until after the "critical" date. See, e.g., Estate of Zavesky v. Commissioner, T.C. Memo. 1981-572, where the petition alleged no error with respect to the estate tax deficiency but disputed the late-filing addition. The administrative settlement of tax deficiencies would thus be discouraged, and the Commissioner would be forced to issue statutory notices determining deficiencies over which there was absolutely no dispute.

Second, a contrary conclusion would serve to create a trap for all but the most sophisticated taxpayers. Unless expert in the legal1982 U.S. Tax Ct. LEXIS 151">*177 intricacies of this Court's jurisdiction, many taxpayers, finding themselves in agreement with respondent's proposed adjustment to their tax liability, would execute a waiver, not realizing that they were thereby foreclosing their opportunity to seek prepayment review by this Court of the addition for late filing.

Moreover, a contrary conclusion would unnecessarily restrict the jurisdiction of this Court and would thereby contravene the expectation of taxpayers that they would be afforded prepayment review of additions to tax attributable to additional 78 T.C. 19">*31 tax liabilities. This Court was created in order "to furnish to the taxpayer a forum in which he could litigate liabilities connected with his taxes without being required to resort to the cumbersome and inequitable processes of paying the amount in question and suing for its recovery." Newsom v. Commissioner, 22 T.C. 225">22 T.C. 225, 22 T.C. 225">227 (1954), affd. per curiam 219 F.2d 444">219 F.2d 444 (5th Cir. 1955). See tit. IX, Revenue Act of 1924, ch. 234, 43 Stat. 336; H. Rept. 179, 68th Cong., 1st Sess. (1924), 1939-1 C.B. (Part 2) 241, 246-247; S. Rept. 398, 68th Cong., 1982 U.S. Tax Ct. LEXIS 151">*178 1st Sess. (1924), 1939-1 C.B. (Part 2) 266, 271-272. In Looper v. Commissioner, 73 T.C. 690">73 T.C. 690, 73 T.C. 690">695 (1980), we stated:

Congress has afforded taxpayers a prepayment forum -- this Court -- in which to contest the Commissioner's asserted deficiency. Consonant therewith, the jurisdiction provisions of the Code have been read in a manner which facilitates rather than impedes access to the Tax Court forum.

See also Levy v. Commissioner, 76 T.C. 228">76 T.C. 228, 76 T.C. 228">231 (1981); Lewy v. Commissioner, 68 T.C. 779">68 T.C. 779, 68 T.C. 779">781 (1977); Traxler v. Commissioner, 61 T.C. 97">61 T.C. 97, 61 T.C. 97">100 (1973), modified 63 T.C. 534">63 T.C. 534 (1975)(where the statute "is capable of two interpretations, we are inclined to adopt a construction which will permit us to retain jurisdiction without doing violence to the statutory language").

Finally, this Court has unquestioned jurisdiction in the case of additions under sections 6653(a) and 6653(b), notwithstanding the fact that the taxpayer executes a waiver prior to the issuance of the statutory notice. Sec. 6659(a); cf. Stewart v. Commissioner, 66 T.C. 54">66 T.C. 54 (1976).1982 U.S. Tax Ct. LEXIS 151">*179 Unless compelled by statute (which we think we are not), there is no reason to establish a different rule in the case of a late-filing addition attributable to an additional tax liability.¹⁶

There is nothing in section 6659(b)(1), in its legislative history, or in its long-standing and consistent application to 78 T.C. 19">*32 indicate that the deficiency to which the late-filing addition is attributable must remain unassessed if the deficiency1982 U.S. Tax Ct. LEXIS 151">*180 procedures are to apply to the addition. Rather, the only requirement is that the addition be attributable to tax which is subject to the deficiency procedures. In the present case, it is clear that the additional tax liability was subject to the deficiency procedures, including section 6213(d). Accordingly, we hold that we have jurisdiction to redetermine the addition involved herein because it is attributable to "a deficiency in tax described in section 6211."

In the case of a failure to file an estate tax return within the time prescribed by law, section 6651(a)(1)¹⁷ provides for an addition to tax in the amount of 5 percent of the tax required to be shown on the return for each month (or part thereof) during which such failure continues, but not to exceed 25 percent in the aggregate. See sec. 301.6651-1(a)(1), Proced. & Admin. Regs. The addition can be avoided, however, if the taxpayer establishes that the failure to timely file was due to reasonable cause and not due to willful neglect. If a taxpayer exercises ordinary business care and prudence and is still unable to file the return within the statutory period, then the delay is due to a1982 U.S. Tax Ct. LEXIS 151">*181 reasonable cause. Sec. 301.6651-1(c)(1), Proced. & Admin. Regs. This standard for determining reasonable cause has long been universally accepted. Sanders v. Commissioner, 225 F.2d 629">225 F.2d 629, 225 F.2d 629">636-637 (10th Cir. 1955), affg. 21 T.C. 1012">21 T.C. 1012 (1954); Estate of Rapelje v. Commissioner, 73 T.C. 82">73 T.C. 82, 73 T.C. 82">89 (1979).

1982 U.S. Tax Ct. LEXIS 151">*182 The burden of proof is, of course, on the petitioner to establish not only the absence of willful neglect but also the existence of reasonable cause. Robinson's Dairy, Inc. v. Commissioner, 78 T.C. 19">*33 302 F.2d 42">302 F.2d 42, 302 F.2d 42">45 (10th Cir. 1962), affg. 35 T.C. 601">35 T.C. 601 (1961); Electric & Neon, Inc. v. Commissioner, 56 T.C. 1324">56 T.C. 1324, 56 T.C. 1324">1342 (1971), affd. without published opinion 496 F.2d 876">496 F.2d 876 (5th Cir. 1974); Rule 142(a). Here, however, respondent has apparently conceded that the delinquency was not due to willful neglect.¹⁸ Accordingly, we turn to the question whether DiRezza exercised ordinary business care and prudence in relying on his attorney to prepare and timely file the estate tax return.

1982 U.S. Tax Ct. LEXIS 151">*183 Whether reasonable cause exists is, of course, primarily a question of fact to be determined from all of the facts and circumstances in a particular case. Estate of Duttenhofer v. Commissioner, 49 T.C. 200">49 T.C. 200, 49 T.C. 200">204 (1967), affd. per curiam 410 F.2d 302">410 F.2d 302 (6th Cir. 1969). DiRezza contends that reasonable cause exists in this case because he did not specifically know of the requirement to file a Federal estate tax return and relied on Fielding to file all necessary tax returns in a timely fashion. We disagree.

It is well established that ignorance of the need to file a tax return will not, in and of itself, excuse a taxpayer from liability for the addition to tax for late filing. Estate of Lammerts v. Commissioner, 54 T.C. 420">54 T.C. 420, 54 T.C. 420">445 (1970), affd. per curiam on this issue 456 F.2d 681">456 F.2d 681, 456 F.2d 681">683 (2d Cir. 1972). It is also well established that a personal representative has a positive duty to ascertain the nature of his or her responsibilities as the fiduciary of the estate and that "This duty is not satisfactorily discharged by delegating the entire responsibility for filing the 1982 U.S. Tax Ct. LEXIS 151">*184 estate tax return to the attorney for the estate." 54 T.C. 420">Estate of Lammerts v. Commissioner, supra at 446; Estate of Geraci v. Commissioner, T.C. Memo. 1973-94, slip op. at 5, affd. per curiam 502 F.2d 1148">502 F.2d 1148 (6th Cir. 1974); see Estate of Duttenhofer v. Commissioner, 49 T.C. 200">49 T.C. 204-206. Rather, the personal representative must, at a minimum, ascertain the due date of the return and take appropriate steps to insure that the 78 T.C. 19">*34 attorney act diligently to fulfill the filing obligation. Estate of Rapelje v. Commissioner, 73 T.C. 82">73 T.C. 82, 73 T.C. 82">89-90 (1979); Estate of Mayer v. Commissioner, 43 T.C. 403">43 T.C. 403, 43 T.C. 403">406 (1964), affd. per curiam 351 F.2d 617">351 F.2d 617 (2d Cir. 1965); 43 T.C. 403">Estate of Geraci v. Commissioner, supra.

We do not think DiRezza satisfied any of the above duties. Rather, we think his general delegation of responsibility to his attorney was tantamount to an abdication of his duties as the personal representative of the estate. For example, DiRezza never bothered to 1982 U.S. Tax Ct. LEXIS 151">*185 inquire about his legal obligations as personal representative. Instead, he instructed Fielding to take care of everything, including the preparation and filing of all necessary tax returns. In effect, he directed his attorney not to disturb him except as necessary to present him with documents for his signature. As Fielding testified: "My instructions were to give him only the documents he was to sign."

At the time he retained Fielding, DiRezza was not specifically aware of the requirement to file a Federal estate tax return. However, he was very conscious of taxes in general and the need to file returns on behalf of the decedent. He specifically instructed Fielding to prepare and file all necessary tax returns. Nevertheless, he never bothered to inquire about what particular taxes might be due or what particular returns might have to be prepared, much less when such returns were required to be filed. Even after DiRezza specifically learned of the requirement to file a Federal estate tax return, he never bothered to inquire why it had not been filed, whether Fielding had applied for an extension, or when Fielding intended to file it.

The fact that DiRezza cooperated with Fielding1982 U.S. Tax Ct. LEXIS 151">*186 and maintained periodic contact with him is entitled to little weight, given the particular facts of this case. DiRezza only inquired about Fielding's progress in administering the estate in a very general fashion and was always satisfied when told that everything was under control and not to worry. In point of fact, he did not know what was being done (or not being done), but merely assumed that all was well.

In April and May 1976, two events occurred which put DiRezza on actual notice of the need to file a Federal estate tax 78 T.C. 19">*35 return. ¹⁹ In April he executed the Colorado inheritance tax application. The first page of that return gave an affirmative response to the question whether a Federal estate tax return would be filed. DiRezza examined the return and asked questions about it. He also inquired whether all State and Federal taxes were going to be taken care of. As usual he was reassured that everything was under control. As usual he did not pursue the matter further.

1982 U.S. Tax Ct. LEXIS 151">*187 In May 1976, DiRezza received the first of several letters from the IRS inquiring about the decedent's estate tax return. Although none of the letters were introduced as exhibits in this proceeding, DiRezza testified at trial as follows:

Q: Did you personally find out when the Federal estate tax return was due? [Emphasis added.]

A: Yes: I got a letter from the IRS * * *

Q: When did the letters from the IRS start coming?

A: I really don't have the date on those, but it was more than a year later. But I had called him about it, and he said that he was on top of it, so I just let it go at that.

Q: So you did no further follow up?

A: Well, he was taking care of it. I thought he had gotten an extension. I didn't1982 U.S. Tax Ct. LEXIS 151">*188 really know what he was doing. [Emphasis added.]

This is not a case involving a complicated area of tax law where a layman could not reasonably be expected to know whether a tax return is required. See West Coast Ice Co. v. Commissioner, 49 T.C. 345">49 T.C. 345, 49 T.C. 345">351-352 (1968). Nor is it a case 78 T.C. 19">*36 where the taxpayer relies on a professional tax consultant who advises him that a tax return is not required. ²⁰ See Estate of Christ v. Commissioner, 54 T.C. 493">54 T.C. 493, 54 T.C. 493">553-554 (1970), affd. on another issue 480 F.2d 171">480 F.2d 171 (9th Cir. 1973). This is a case where the estate's personal representative simply failed in his duty to ascertain the due date of the return and to take appropriate steps to insure that the attorney prepare and file it on time.

1982 U.S. Tax Ct. LEXIS 151">*189 DiRezza cites many cases in support of his position but relies primarily on four: Estate of DiPalma v. Commissioner, 71 T.C. 324">71 T.C. 324 (1978); Rohrabaugh v. United States, 611 F.2d 211">611 F.2d 211 (7th Cir. 1979); Gray v. United States, 453 F. Supp. 1356">453 F. Supp. 1356 (W.D. Mo. 1978); and Sheehan v. United States, an unreported case ( N.D. Ohio 1979, 44 AFTR 79-6127, 79-1 USTC par. 13,304). None of these cases, however, dictates a conclusion contrary to the one that we have reached.

71 T.C. 324">Estate of DiPalma v. Commissioner, supra, is clearly distinguishable. There, the executrix was a housewife who had been married for 45 years and had never had any business experience. We held that her reliance on the attorney was reasonable because he led her to believe that the presence of litigation concerning the assets of the estate justified the delay in filing the estate tax return. Here, however, DiRezza's attorney never misled him about the reason for the delay in filing the return.

611 F.2d 211">Rohrabaugh v. United States, supra, is also 1982 U.S. Tax Ct. LEXIS 151">*190 clearly distinguishable, if for no other reason than there the estate tax return was filed within 4 days after the administratrix first became aware that it had not been filed. ²¹ Here, however, the return was not filed until January 10, 1977, approximately 8 months after DiRezza executed the Colorado inheritance tax application and received the first of several letters from the Internal Revenue Service inquiring about the decedent's Federal estate tax return. Moreover, Rohrabaugh has arguably 78 T.C. 19">*37 lost some of its vitality after Fleming v. United States, 648 F.2d 1122">648 F.2d 1122, 648 F.2d 1122">1126 (7th Cir. 1981).²²

1982 U.S. Tax Ct. LEXIS 151">*191 In 453 F. Supp. 1356">Gray v. United States, supra at 1360, the District Court stated that "If the duty to file a return is personal and nondelegable, it is only when the taxpayer has actual knowledge of the date the return in question is due." However, in Rapelje v. Commissioner, 73 T.C. 82">73 T.C. 89-90 n. 7, we flatly disagreed and stated as follows:

Given that the executor is aware of the necessity of filing a return, we think it reasonable to presume that he is aware of the existence of a filing deadline. Based on that presumption, we think the executor fails to exercise ordinary care if he does not ascertain the due date of the return.

Furthermore, it is questionable whether Gray has any vitality after Boeving v. United States, 650 F.2d 493">650 F.2d 493, 650 F.2d 493">495 (8th Cir. 1981)("The executor or executrix has a personal and nondelegable duty to file a timely return, and reliance on the mistaken advice of counsel is not sufficient to constitute 'reasonable cause' for failing to fulfill that duty"); and Estate of Lillehei v. Commissioner, 638 F.2d 65">638 F.2d 65, 638 F.2d 65">66 (8th Cir. 1981), affg. a Memorandum1982 U.S. Tax Ct. LEXIS 151">*192 Opinion of this Court ("an executor has a personal and nondelegable duty to ascertain the due date of the return and to insure that the attorney prepares and files the return on time").

Finally, in 453 F. Supp. 1356">Sheehan v. United States, supra, the District Court held that the executrix did not exercise ordinary business care and prudence in relying on an attorney to file the estate tax return when she had reason to believe that he would not file it on time. Petitioner cites Sheehan for the proposition that the "test" for reasonable cause is "whether a reasonable person would question her attorney as to when the estate tax return was due and when it would be filed." We question whether Sheehan fashioned any such test; however, if it did, we disagree with such test. Absent exceptional circumstances such as those in 71 T.C. 324">Estate of DiPalma v. Commissioner, supra, the personal representative's duty to ascertain the due 78 T.C. 19">*38 date of the return subsists regardless of his or her degree of confidence in the attorney.

Accordingly, we hold that DiRezza's reliance on his attorney to prepare and timely file the estate tax return did not constitute the exercise of1982 U.S. Tax Ct. LEXIS 151">*193 ordinary business care and prudence. Hence, we sustain respondent's determination that petitioner is liable for the addition to tax for late filing.

Decision will be entered for the respondent.