- 24 -
E. Whether Petitioners Are Not Liable for Additions to Tax
Under Section 6651(a) Because Respondent Selectively Applied
It to Them
1. Background
Petitioners contend that they are not liable for additions
to tax under section 6651(a) because, in petitioners’ view,
respondent selectively applied it to them. We disagree.
The standard for evaluating a claim of selective or
discriminatory prosecution in a criminal case is as follows:
the person asserting such a claim bears the burden of
establishing, prima facie, both:
(1) that, while others similarly situated have
not generally been proceeded against because of
conduct of the type forming the basis of the
charge against him, he has been singled out for
[investigation], and (2) that the government's
discriminatory selection of him for
[investigation] has been invidious or in bad
faith, i.e., based upon such impermissible
considerations as race, religion, or the desire
to prevent his exercise of constitutional rights.
[St. German of Alaska E. Orthodox Catholic Church
v. United States, 840 F.2d 1087, 1095 (2d Cir.
1988).]
Petitioners' claim lacks merit if it does not meet the standard
applied in criminal cases. Karme v. Commissioner, 673 F.2d 1062,
1064 (9th Cir. 1982), affg. 73 T.C. 1163 (1980).
2. Petitioners’ Discovery Request
Petitioners seek to discover statistical information about
respondent’s imposition of additions to tax under section 6651
against taxpayers who filed Forms 4868 for the years in issue.
Petitioners argue that they will not know whether it was rational
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: May 25, 2011