Hubert and Flora M. Swaringer - Page 11




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          1992-394.  There is no indication in the record that the amounts            
          disallowed were for clothing that could not be worn in an                   
          ordinary way.  Respondent’s determinations are sustained.                   
               5.  Negligence.--Respondent determined that the omission               
          from income of the so-called “gifts” and the deductions claimed             
          on the Schedule C were due to negligence and that the penalty               
          under section 6662(a) is applicable.  Section 6662(a) imposes a             
          penalty with respect “to any portion of an underpayment of tax              
          required to be shown on a return” in an amount “equal to 20                 
          percent of the portion of the underpayment to which this section            
          applies.”  Section 6662 applies, inter alia, to underpayments               
          attributable to negligence or disregard of rules or regulations.            
          See sec. 6662(b)(1).  “Negligence” includes any failure to make a           
          reasonable attempt to comply with the provisions of the Internal            
          Revenue Code, and “disregard” includes any careless, reckless, or           
          intentional disregard.  Sec. 6662(c).  Negligence also includes             
          any failure by the taxpayer to keep adequate books and records or           
          to substantiate items properly.  See sec. 1.6662-3(b)(1), Income            
          Tax Regs.  Also, “‘Negligence is a lack of due care or the                  
          failure to do what a reasonable and ordinarily prudent person               
          would do under the circumstances.’”  Freytag v. Commissioner, 89            
          T.C. 849, 887 (1987) (quoting Marcello v. Commissioner, 380 F.2d            
          499, 506 (5th Cir. 1967), affg. on this issue 43 T.C. 168 (1964)            
          and T.C. Memo. 1964-299), affd. 904 F.2d 1011 (5th Cir. 1990),              






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