Marvin J. Lewis and Brenda J. Lewis - Page 10




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          Closing Statement lists $9,717 of selling expenses which are to             
          be deducted from the $103,970 figure to reach a net capital gain            
          of $94,253.  Thus, the capital gain adjustment is $95,710                   
          ($94,253 + $1,457).  This can be reflected in the Rule 155                  
          computation.                                                                
               Under section 7491(c), respondent has the burden of                    
          production in any court proceeding with respect to the liability            
          of any individual for any penalty or addition to tax.  Section              
          6651(a)(1) imposes an addition to tax for failure to file a                 
          return on time.  The addition equals 5 percent for each month               
          that the return is late, not to exceed 25 percent.  The addition            
          to tax under section 6651(a)(1) is imposed unless the taxpayer              
          establishes that the failure was due to reasonable cause and not            
          willful neglect.  “Reasonable cause” requires a taxpayer to                 
          demonstrate that he or she exercised ordinary business care and             
          prudence.  United States v. Boyle, 469 U.S. 241, 246 (1985).                
          Willful neglect is defined as a “conscious, intentional failure             
          or reckless indifference.”  Id. at 245.                                     
               Petitioners’ return was untimely filed on March 15, 1996,              
          and bore a signature date of April 6, 1996.  The return was due             
          on April 15, 1994.  At trial, petitioner admitted the 1993 return           
          was filed in 1996.  Petitioner claimed that he had financial                
          difficulties to the point of filing a bankruptcy proceeding.                
          Petitioner’s unfortunate personal and financial circumstances do            





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