- 47 - 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.Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
Last modified: May 25, 2011