Patrick W. Healey and Nancy L. Marshall - Page 24

                                       - 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  Next

Last modified: May 25, 2011