Eyefull Incorporated - Page 47

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          conduct that constitutes negligence and petitioner can offer no             
          excuse, it is liable for the addition to tax.7                              
               Section 6662(a) and (b)(1)8 imposes an accuracy-related                
          penalty equal to 20 percent of the portion of an underpayment of            
          tax that is attributable to negligence.  For purposes of section            
          6662, unlike section 6653, the amount shown on a late return is             
          not treated as an underpayment.  Sec. 6664(a)(1).  Consequently             
          delinquency, by itself, is not grounds for the accuracy-related             
          penalty.  Sec. 1.6662-2(a), Income Tax Regs.  As under prior law,           
          “negligence” includes any failure to make a reasonable attempt to           
          comply with the provisions of the Code.  Sec. 6662(c).  A                   
          position with respect to an item is attributable to negligence if           
          the taxpayer failed to maintain adequate records to substantiate            

               7  Cf. Lazore v. Commissioner, 11 F.3d 1180, 1188-1189 (3d             
          Cir. 1993), revg. in relevant part T.C. Memo. 1992-404 (holding             
          that an underpayment was not attributable to delinquency because            
          the taxpayers would have reported no tax due even if they had               
          filed on time).  In a footnote to its decision, the Court of                
          Appeals for the Third Circuit questioned the soundness of the               
          holding in Emmons v. Commissioner, 92 T.C. 342 (1989), affd. 898            
          F.2d 50 (5th Cir. 1990), that in the absence of extenuation                 
          delinqency is grounds for imposition of the addition to tax under           
          sec. 6653.  Lazore v. Commissioner, supra at 1189 n.4.  Although            
          we reaffirm our belief in the logic of Emmons v. Commissioner,              
          supra and Condor Intl., Inc. v. Commissioner, 98 T.C. 203 (1992),           
          affd. in part and revd. in part 78 F.3d 1355 (9th Cir. 1996), we            
          note that our result for TYE 8/31/89 would not differ under the             
          negligence analysis we use in applying sec. 6662(a) and (b)(1) to           
          TYE 8/31/90 and TYE 8/31/91, infra.  See Pessin v. Commissioner,            
          59 T.C. 473, 489 (1972).                                                    
               8 Although the notice of deficiency determined negligence              
          (sec. 6662(b)(1)) and substantial understatement (sec.                      
          6662(b)(2)) as alternative theories for imposition of the                   
          penalty, on brief respondent pursued only the former theory.                




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