Richard Santulli and Virginia Santulli - Page 33

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          1981, inasmuch as there was no timely filed return, the amount              
          shown on a timely filed return is zero, and the underpayment                
          equals the entire tax liability.  Emmons v. Commissioner, 92 T.C.           
          342, 348-349 (1989), affd. 898 F.2d 50 (5th Cir. 1990).  When an            
          underpayment is caused by the taxpayer's failure to file timely             
          an income tax return, such underpayment is due to negligence if             
          the taxpayer lacks reasonable cause for such failure.  See id. at           
          349.  The parties have also stipulated that petitioners lacked              
          reasonable cause for failing to file timely their 1980 and 1981             
          Federal income tax returns.  Accordingly, normally, we would find           
          that the entire underpayment for each of those years is due to              
          negligence, and we would sustain respondent's additions to tax              
          under section 6653(a) for 1980 and under section 6653(a)(1) and             
          (2) for 1981.  However, the parties have additionally stipulated            
          that petitioners "are not liable for additions to tax pursuant to           
          I.R.C. �� 6653(a)(1) and �6653(a)(2) as a result of * * *                   
          [certain properly disallowed deductions] for their 1980, 1981, or           
          1982 taxable years".  Also, respondent has determined the                   
          interest-sensitive addition to tax with regard to only a portion            
          of the 1981 underpayment.  We are at a loss to reconcile the                
          stipulations respondent has joined, her determination of the                
          interest-sensitive addition for 1981, and the rule of Emmons v.             
          Commissioner, supra at 348-349.  We assume that respondent has              
          chosen not to rely on Emmons for 1980 and 1981.  We will treat              
          respondent as having made a concession to that extent.                      




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