Northwestern Indiana Telephone Company - Page 89

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            percent of the underpayment for 1989.  Respondent determined that                          
            the 20-percent addition under section 6662 should apply with                               
            respect to the entire underpayment for 1989.                                               
                  Negligence has been defined as the failure to exercise the                           
            due care that a reasonable and ordinarily prudent person would do                          
            under the circumstances.  Neely v. Commissioner, 85 T.C. 934, 947                          
            (1985).  Petitioners bear the burden of showing that they are not                          
            negligent.  Rule 142(a); Bixby v. Commissioner, 58 T.C. 757, 791-                          
            792 (1972).                                                                                
                  Petitioners argue that NITCO and the Mussmans are not liable                         
            for additions to tax for negligence.  Their contentions are as                             
            follows:                                                                                   

                        Respondent has not rebutted any of the facts                                   
                  supporting the reasonableness of NITCO's accumulations.                              
                  Imposition of the * * * [accumulated earnings tax] and                               
                  any additional penalty is therefore unwarranted.                                     
                  Similarly, imposing penalties for deducting the                                      
                  allegedly nondeductible attorneys' fees and other costs                              
                  attributable to billing errors by outside attorneys or                               
                  oversight by the independent accountant would also be                                
                  improper.  None of any underpayment ultimately                                       
                  determined is attributable to negligence or intentional                              
                  disregard.  * * *                                                                    

                  We have previously held that NITCO is liable for accumulated                         
            earnings tax for 1987, 1988, and 1989, because NITCO accumulated                           
            its earnings beyond the reasonable needs of the business and was                           
            availed of for the purpose of avoiding income tax with respect to                          
            its shareholders.  We further held that, for 1987, 1988, and                               
            1989, substantial business deductions for legal expenses that                              
            NITCO claimed were not allowable to NITCO under section 162,                               



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