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underpayment for purposes of this section as the equivalent of a
deficiency.
Section 6653(a)(3) provides that negligence includes “any failure
to make a reasonable attempt to comply with the provisions of this
title, and the term ‘disregard’ includes any careless, reckless, or
intentional disregard.” Courts have defined negligence as the lack of
due care or failure to do what an ordinarily prudent person would do
under the circumstances. Bassett v. Commissioner, 67 F.3d 29, 31 (2d
Cir. 1995), affg. 100 T.C. 650 (1993); Marcello v. Commissioner, 380
F.2d 499, 506 (5th Cir. 1967), affg. in part and remanding in part 43
T.C. 168 (1964). Petitioner bears the burden of showing that it was
not negligent. Rule 142(a); Goldman v. Commissioner, 39 F.3d 402, 407
(2d Cir. 1994), affg. T.C. Memo. 1993-480.
In United States v. Boyle, 469 U.S. 241, 251 (1985), the Supreme
Court held that “When an accountant or attorney advises a taxpayer on
a matter of tax law, such as whether a liability exists, it is
reasonable for the taxpayer to rely on that advice.” Ordinary
business prudence or due care does not demand that a taxpayer seek a
second opinion, id., so long as such advice is reasonable under the
circumstances and is based on full disclosure by the taxpayer, see,
e.g., Sim-Air, USA, Ltd. v. Commissioner, 98 T.C. 187, 201 (1992)
(reliance on tax professional’s advice was reasonable when a corporate
subsidiary failed to qualify as a DISC when the advice turned out to
be erroneous, especially in light of the complexity of section 992 and
associated regulations).
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