- 66 - 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).Page: Previous 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 Next
Last modified: May 25, 2011