James D. Barber and Betty L. Barber - Page 30




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          Kaliban v. Commissioner, T.C. Memo. 1997-271; Sann v.                       
          Commissioner, T.C. Memo. 1997-259 n.13 (and cases cited therein),           
          affd. Addington v. Commissioner, 205 F.3d 54 (2d Cir. 2000).  We            
          found the taxpayers liable for the additions to tax for                     
          negligence in nearly all of those cases.                                    
          I. Section 6653(a)(1) and (2) Negligence                                    
               Respondent determined that petitioners are liable for                  
          additions to tax under section 6653(a)(1) and (2) with respect to           
          the underpayment attributable to petitioners’ investment in                 
          Whitman.  Petitioners have the burden of proof to show that they            
          are not liable for the additions to tax.  See Addington v.                  
          Commissioner, supra; Goldman v. Commissioner, 39 F.3d 402, 407              
          (2d Cir. 1994), affg. T.C. Memo. 1993-480; Luman v. Commissioner,           
          79 T.C. 846, 860-861 (1982); Bixby v. Commissioner, 58 T.C. 757,            
          791-792 (1972).  See generally Rule 142(a); INDOPCO, Inc. v.                
          Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290               
          U.S. 111, 115 (1933).16                                                     
               Section 6653(a)(1) and (2) imposes additions to tax if any             
          part of the underpayment of tax is due to negligence or                     
          intentional disregard of rules or regulations.  Negligence is               
          defined as the failure to exercise the due care that a reasonable           

               16  Cf. sec. 7491(c), effective for court proceedings                  
          arising in connection with examinations commencing after July 22,           
          1998.  In the present cases, the examination of petitioners’                
          income tax returns for 1982 and 1983 commenced well before July             
          22, 1998.                                                                   





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