Residential Management Services Trust - Page 31




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               form 1040 was filed and signed by the Carey’s for the                  
               year 1995.  Mr. Tim Riley from American Tax Service                    
               (bookkeeping) was hired to do all bookkeeping for the                  
               year 1995.  American Tax Professionals was hired to                    
               complete the 1040 tax returns based on the information                 
               provided by Mr. Riley.  The Carey’s relied on these                    
               professionals to produce accurate tax information.                     
               Under [secs.] 6662 and 6664 and applicable regulations,                
               a taxpayers good faith reliance on the advice of                       
               (including opinions) of a professional tax advisor will                
               generally be taken in account for purposes of                          
               determining whether the taxpayer will be subject to                    
               accuracy related penalty.                                              
               The Careys bear the burden of proof.  To sustain a defense             
          to the accuracy-related penalty based on reliance on professional           
          advice, the Careys must establish, among other things, what                 
          advice they relied on and that the advice was based on adequate             
          information provided by them.  See, e.g., Daugherty v.                      
          Commissioner, 78 T.C. 623, 641 (1982); Pessin v. Commissioner,              
          59 T.C. 473, 489 (1972); Ciaravella v. Commissioner, T.C. Memo.             
          1998-31; Stephens v. Commissioner, T.C. Memo. 1997-204.  The                
          Careys offered no evidence regarding what information they                  
          provided to, or what advice they received from, Tim Riley,                  
          American Tax Service, American Tax Professionals, or Linda                  
          Billingsley, who signed the return as a paid preparer.  The                 
          Careys failed to carry their burden of proving that they were not           
          negligent or that they acted in good faith or had reasonable                
          cause for the positions they took on their return.  The                     
          understatement of income was (and remains) substantial, and we              
          sustain respondent’s determination of the accuracy-related                  






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