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percent of any portion of an underpayment that is attributable to
the taxpayer’s negligence.
Broadly speaking, for purposes of the provision, negligence
is the lack of due care or failure to do what a reasonable and
ordinarily prudent person would do under the circumstances to
determine that person’s income tax liability. See ASAT, Inc. v.
Commissioner, 108 T.C. 147, 175 (1997); Cluck v. Commissioner,
105 T.C. 324, 339 (1995). Negligence includes any failure to
keep adequate books and records. See sec. 1.6662-3(b)(1), Income
Tax Regs. Petitioners have the burden of proving error in
respondent’s determination that the addition to tax should be
imposed against them.16 See Little v. Commissioner, 106 F.3d
1445, 1449-1450 (9th Cir. 1997), affg. T.C. Memo. 1993-281;
Korshin v. Commissioner, 91 F.3d 670, 671 (4th Cir. 1996), affg.
T.C. Memo. 1995-46; ASAT, Inc. v. Commissioner, 108 T.C. at 175.
Petitioners have failed to introduce any evidence or offer
any relevant argument supporting their contention that respondent
erred in determining that the addition to tax under section
6662(a) applies. The following sentence represents the extent of
16Section 7491(c), relating to burden of proof with respect
to additions to tax, as enacted by sec. 3001 of the Internal
Revenue Service Restructuring and Reform Act of 1998 (1998 Act),
Pub. L. 105-206, 112 Stat. 685, 726, does not apply in the
instant case because the examination in petitioners’ case began
before July 22, 1998, the effective date of sec. 7491(c). See
the 1998 Act, sec. 3001(c)(1), 112 Stat. 727.
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