Martin Ice Cream Company - Page 66

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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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