Thomas N. Carmena - Page 6




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          of rules or regulations.  Section 6653(a)(2) imposes another                
          addition to tax in an amount equal to 50 percent of the interest            
          due on the portion of the underpayment attributable to negligence           
          or intentional disregard of rules or regulations.  Respondent’s             
          determinations in a notice of deficiency are presumed correct,              
          and petitioner must establish otherwise.  See Rule 142(a); Welch            
          v. Helvering, 290 U.S. 111, 115 (1933); cf. sec. 7491(c).5                  
          Respondent determined that petitioner's underpayment was due to             
          negligence.  Petitioner, therefore, has the burden of proving he            
          was not negligent in deducting his share of the partnership’s               
          losses.  See Estate of Mason v. Commissioner, 64 T.C. 651, 663              
          (1975), affd. 566 F.2d 2 (6th Cir. 1977); Bixby v. Commissioner,            
          58 T.C. 757, 791 (1972); Anderson v. Commissioner, T.C. Memo.               
          1993-607, affd. 62 F.3d 1266 (10th Cir. 1995).                              
               Negligence is defined as the failure to exercise the due               
          care that a reasonable and ordinarily prudent person would                  
          exercise under like circumstances.  See Anderson v. Commissioner,           
          62 F.3d 1266, 1271 (10th Cir. 1995), affg. T.C. Memo. 1993-607;             


               5    The Internal Revenue Service Restructuring & Reform Act           
          of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, added                   
          sec. 7491(c), which places the burden of production on the                  
          Secretary with respect to a taxpayer’s liability for penalties              
          and additions to tax in court proceedings arising in connection             
          with examinations commencing after July 22, 1998.  Petitioner               
          does not contend, nor is there evidence, that his examination               
          commenced after July 22, 1998, or that sec. 7491 is applicable in           
          this case.                                                                  





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