- 21 - deduction claims for prior years amounts to “reasonable cause” for his underpayments in the years at issue. In support of this assertion, petitioner cites Estate of Phillips v. Commissioner, T.C. Memo. 1955-139, revd. on other grounds 246 F.2d 209 (5th Cir. 1957). In Estate of Phillips, the Commissioner had examined the taxpayer’s records in prior years and had not assessed or asserted deficiencies. We held that the taxpayer may use the Commissioner’s tacit approval to rebut the presumption of correctness of the Commissioner’s determination of the negligence penalties for the years at issue. Petitioner’s reliance on Estate of Phillips is misplaced. In Estate of Phillips the Commissioner had examined prior years and had taken no exception to the prior years’ returns. However, the Commissioner’s approval of a prior year did not purge the negligence of a later year. We simply held that the Commissioner’s tacit approval of the prior years’ returns shifted to the Commissioner the burden of coming forward with evidence of the taxpayer’s negligence, a “burden he has not sustained.” Petitioner did not offer any evidence to show that respondent examined any tax year prior to 1992. Therefore, there is no evidence in the record that respondent ever tacitly approved petitioner’s method of calculating his Federal income tax. Even if it can be said--and we do not agree-–that by failing to audit petitioner’s prior returns respondent somehowPage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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