- 81 - authorities, as was done, to support her position that the return was invalid because she was signing under duress. At the times her accountant signed the requests to extend the times for filing her 1989 return, the 1988 return was under audit by the Internal Revenue Service. On September 13, 1990, the revenue agent issued a report taking the position that a substantial part of the Phase II deposits was taxable on the 1988 return. Her 1989 return, as filed on October 12, 1990, pursuant to the extensions, took the position, obviously with the return preparer's advice, that there was no tax due. This appears to have been due to the combination of three mistaken positions: First, that she had a net loss of $4,101 from Woodbine operations because the bulk of the gross income had been taxable in the prior year, in accordance with the revenue agent's recently issued report; second, the even more aggressive position she has been taking in this proceeding, that she was not taxable on any part of the 1989 Woodbine operating income because Howard Berger owned the Woodbine business in its entirety; and third, that she had no gain on the sale to the Kunkowskis because the attribution of the sale to Howard Berger under either or both of the "on behalf of" and step-transaction approaches under section 1041 gave her a basis in Woodbine equal to the amount realized of $680,000. Although we have concluded otherwise on the merits, we believe that there was a reasonable basis for Alice Berger's 1989 return positions, and for her failures to pay tax with her extension applications. We reject respondent's imposition of the section 6651(a) addition to tax.Page: Previous 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 Next
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