4
of his testimony, and is entitled to no evidentiary weight
whatever.1
Respondent also determined a penalty against petitioner
under section 6662(a), in the amount of $5,281, for the year
1990. That section provides for the imposition of a penalty
equal to 20 percent of the portion of the underpayment, if such
underpayment arises either from negligence, disregard of rules or
regulations, or is attributable to a substantial understatement
of income tax. Section 6662(d) in turn defines a substantial
understatement of income tax as being either 10 percent of the
tax required to be shown on the return for the taxable year, or
$5,000, whichever is greater. The determined deficiency here was
of $22,217, as reported as compared to a reported tax liability
of zero, and was above $5,000. As in the case of the predecessor
section covering cases of this type, section 6653(a), the burden
of proof to show error on the part of respondent is clearly
placed upon petitioner. Neely v. Commissioner, 85 T.C. 934, 947
(1985); Arcadia Plumbing Trust v. Commissioner, T.C. Memo. 1994-
455. The matter was not mentioned by petitioner in pleading, in
trial, or on brief; we cannot be sure if he intended to abandon
it, but in any case respondent's determination of the applicable
penalty must be sustained.
1 The net capital loss carryforward that was disallowed by
respondent was not mentioned in the pleadings, at trial, or on
brief, and we deem it to be abandoned.
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