- 50 - 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.Page: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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