Allen Burditt II and Sarah Maunee S. Burditt - Page 30




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          one-third as paid in lieu of defending against the claim for                
          punitive damages.  The amount allocated to Mr. Burditt's claim              
          for mental anguish ($66,667) is excludable from petitioners'                
          gross income as damages received on account of a personal injury,           
          sec. 104(a)(2), while the amount allocated to punitive damages              
          ($33,333) is not.  See O'Gilvie v. United States, 519 U.S. 79               
          (1996).                                                                     
          3. Section 6662 Penalty                                                     
               For petitioners' 1992 tax year, respondent determined that             
          petitioners are liable for the section 6662(b)(2) penalty for the           
          substantial understatement of tax, or in the alternative, for the           
          section 6662(b)(1) penalty for negligence or disregard of the               
          rules or regulations.  Respondent's determinations are presumed             
          correct, and petitioners bear the burden of proving that the                
          penalty does not apply.  See Rule 142(a); Bixby v. Commissioner,            
          58 T.C. 757, 791-792 (1972).                                                
               Section 6662(a) imposes a penalty in an amount equal to 20             
          percent of the portion of an underpayment of tax attributable to            
          negligence or disregard for rules or regulations or any                     
          substantial understatement of income tax.  The term “negligence”            
          includes a failure to make a reasonable attempt to comply with              
          the provisions of the Internal Revenue laws, and “disregard”                
          includes any careless, reckless, or intentional disregard of                
          rules or regulations.  Sec. 6662(c); sec. 1.6662-3(b)(1) and (2),           





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