Michael L. and Susan Barnard - Page 23




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          negligence (i.e., an unreasonable failure to comply with the                
          provisions of the Code or a careless, reckless, or intentional              
          disregard of rules or regulations) rather than to fraud (i.e., an           
          intent to evade a tax known or believed to be owing).7  To be               
          sure, petitioners deposited into their bank accounts all of the             
          unreported income attributable to their rental properties and               
          never attempted to hide their receipt of that income.  Moreover,            
          as even respondent acknowledges, petitioners’ failure to report             
          all of their rental income on their original returns was due to             
          the fact that they estimated that income rather than attempted              
          earnestly to ascertain it by reference to the bank statements.              
               As to the fact that petitioners commingled their personal              
          funds with the funds of Nanny’s, we do not view this fact in                
          light of the record as a whole as establishing the requisite                
          fraudulent intent.  Petitioners’ commingling of the funds was               
          simply a continuance of that practice from the immediate prior 4            
          years in which they operated Nanny’s as a sole-proprietorship,              
          rather than as a blatant attempt to avoid Federal income taxes.             
          Moreover, at the end of the relevant years, Mr. Mason, their                
          longtime accountant who was knowledgeable as to both Nanny’s                



               7 We stop short of opining on whether petitioners’                     
          underpayment is actually attributable to negligence for purposes            
          of the additions to tax under sec. 6653(a).  Respondent has                 
          neither determined nor pleaded as an alternative to the fraud               
          determination that petitioners are liable for those additions for           
          any of the subject years.                                                   





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