Sony and Gwendolyn A. Jean Baptiste - Page 9




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          Accuracy-Related Penalty                                                    
               In the notice of deficiency, respondent determined that                
          petitioners were liable for the accuracy-related penalty under              
          section 6662(a) “due to substantial understatement of tax”.                 
          Section 6662(a) imposes a penalty of 20 percent of the portion of           
          the underpayment which is attributable to any substantial                   
          understatement of income.  See sec. 6662(b)(2).  There is a                 
          substantial understatement of income tax for any year if the                
          amount of the understatement exceeds the greater of 10 percent of           
          the tax required to be shown on the return or $5,000.  See sec.             
          6662(d)(1).  Consequently, due to our holdings on the other                 
          issues, if the Rule 155 computation does not indicate that                  
          petitioners’ understatement of tax exceeded the greater of 10               
          percent of the amount of tax required to be shown on the return             
          or $5,000, petitioners will not be liable for the section 6662              
          accuracy-related penalty due to substantial understatement of               
          tax.                                                                        
               In the alternative, counsel for respondent raised in her               
          trial memorandum the issue that petitioners negligently failed to           
          report the income from Ortega and, therefore, are liable for the            
          section 6662 penalty for negligence or disregard of rules or                
          regulations.  Where respondent raises a new issue after the                 
          issuance of the notice of deficiency, respondent bears the burden           
          of proof.  See Rule 142(a).                                                 
               Section 6662(a) imposes a penalty of 20 percent on the                 
          portion of the underpayment which is attributable to negligence             


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