M. Bennett Marcus and Maria F. Marcus - Page 23

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          with reasonable cause and in good faith depends upon the                    
          pertinent facts and circumstances.  Sec. 1.6664-4(b)(1), Income             
          Tax Regs.                                                                   
               Petitioners have conceded that they failed to include                  
          significant amounts of miscellaneous income, interest income, and           
          capital gain income.  Petitioners have offered no evidence that             
          they were not negligent in omitting such items or that they had             
          reasonable cause to do so.  Petitioners have offered no evidence            
          that they were not negligent or had reasonable cause to deduct              
          attorney's fees in excess of the amount allowed by respondent or            
          in failing to include any portion of the $37,898 in taxable                 
          income.  In fact, petitioners' briefs fail to address the                   
          negligence issue at all.  We cannot be sure that petitioners                
          intended to abandon the issue, but in any case respondent's                 
          determination of the applicable penalty must be sustained with              
          respect to the underpayment redetermined herein as petitioners              
          have not met their burden of proof on this matter.  Respondent's            
          alternative argument for the substantial understatement penalty             
          is rendered moot by our finding sustaining the negligence                   
          penalty.                                                                    
               To reflect the foregoing and concessions of the parties,               
                                             Decision will be entered                 
                                        under Rule 155.                               







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Last modified: May 25, 2011