Unico Sales & Marketing, Inc. - Page 6




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          to deduct unpaid expenses if the party to whom the expenses were            
          paid is in constructive receipt.  We find this argument meritless           
          and hold petitioner may not deduct the unpaid wages.2  We sustain           
          respondent's determination.                                                 
               Respondent determined petitioner is liable for the                     
          accuracy-related penalty under section 6662(a) and (b)(1) for               
          both years in issue.  That section imposes a penalty equal to 20            
          percent of the portion of an underpayment that is attributable              
          to, among other things, negligence.  Petitioner will avoid this             
          penalty if the record shows that it was not negligent; i.e., it             
          made a reasonable attempt to comply with the provisions of the              
          Internal Revenue Code and was not careless, reckless, or in                 
          intentional disregard of rules or regulations.  See sec. 6662(c);           
          Accardo v. Commissioner, 942 F.2d 444, 452 (7th Cir. 1991), affg.           
          94 T.C. 96 (1990); Drum v. Commissioner, T.C. Memo. 1994-433,               
          affd. without published opinion 61 F.3d 910 (9th Cir. 1995).                
          Negligence connotes a lack of due care or a failure to do what a            
          reasonable and prudent person would do under the circumstances.             
          See Allen v. Commissioner, 92 T.C. 1 (1989), affd. 925 F.2d 348             
          (9th Cir. 1991); Neely v. Commissioner, 85 T.C. 934, 947 (1985).            


               2Petitioner's argument is rendered particularly meritless by           
          the fact that the Foriers apparently did not believe they were in           
          "constructive receipt" of the wages when accrued by petitioner              
          since they did not include the wages in income until actually               
          paid.                                                                       





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