Gabriel M. Daya, et al. - Page 50




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               Respondent determined petitioners’ underpayments of tax are            
          attributable to negligence.  Petitioners maintain they were not             
          negligent and that they reasonably relied in good faith on their            
          income tax return preparer.  Petitioners bear the burden of                 
          proving that the negligence penalty is inapplicable.23  See Rule            
          142(a); Welch v. Helvering, 290 U.S. 111 (1933); Bixby v.                   
          Commissioner, 58 T.C. 757, 791-792 (1972).                                  
               Petitioners exhibited a lack of due care in determining their          
          proper income tax liability.  They both failed to maintain records          
          to substantiate their entitlement to the deductions at issue and            
          to head of household filing status.  In 1995, both claimed                  
          deductions for expenses related to the Foster City residence when           
          they held neither legal or beneficial ownership of the residence.           
          Moreover, without any reasonable basis, they attributed to                  
          themselves Fuad’s checks to Mahmoud totaling $17,500 in                     
          considering their entitlement to deductions and head of household           
          filing status.                                                              


               23 Although petitioners make no reference to sec. 7491(c),             
          which was enacted by the Internal Revenue Service Restructuring &           
          Reform Act of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 685,              
          726, they appear to invoke its rule requiring the Secretary to              
          carry the burden of production with respect to additions to tax.            
          Sec. 7491(c), however, is only applicable to court proceedings              
          arising in connection with examinations commencing after July 22,           
          1998.  Of the three notices of deficiency giving rise to this               
          case, two were issued prior to July 22, 1998 and one was issued             
          on Dec. 3, 1998.  Petitioners do not contend, nor are we                    
          persuaded by the evidence, that any of their examinations                   
          commenced after July 22, 1998.                                              






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