Gary Wilson - Page 21




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          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 somehow              







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