Pelton & Gunther, Professional Corporation - Page 17




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          P&G’s NOL should be reduced by the amounts that would have been             
          absorbed by the carryback of the losses to pre-loss years.6                 
          III.  Accuracy-Related Penalty Under Section 6662                           
               Respondent also determined that petitioner was negligent and           
          liable for a penalty under section 6662(a) and (b)(1) for the               
          year at issue.  Section 6662(a) and (b)(1) imposes an accuracy-             
          related penalty equal to 20 percent of an underpayment that is              
          attributable to negligence or disregard of rules or regulations.            
               Negligence has been defined as a “lack of due care or a                
          failure to do what a reasonable person would do under the                   
          circumstances.”  Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th           
          Cir. 1992), affg. T.C. Memo. 1991-179.  Respondent’s                        
          determination of negligence is presumed correct, and petitioner             
          bears the burden of showing that respondent’s determination is              
          erroneous.  See Rule 142(a).  Therefore, petitioner must prove              
          that it was not negligent; i.e., that it made a reasonable                  
          attempt to comply with the provisions of the Internal Revenue               
          Code and that it was not careless, reckless, or in intentional              
          disregard of rules or regulations.  See sec. 6662(b) and (c).  We           
          find that petitioner was negligent for deducting the advanced               
          litigation costs as ordinary and necessary business expenses and            



               6  To the extent we have not addressed certain other                   
          arguments made by petitioner, we found them to be wholly without            
          merit.                                                                      





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