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statutory argument or address the assertion that respondent’s
determination was arbitrary: Who bears the burden of proof is
immaterial because the record is sufficient to decide this case
on the basis of a preponderance of the evidence. See, e.g.,
Martin Ice Cream Co. v. Commissioner, 110 T.C. 189, 210 n.16
(1998). We note, however, that respondent does bear the burden
of proof with respect to the substantial understatement addition
to tax because it was asserted for the first time in his answer.
Rule 142(a).
Negligence
Section 6653(a)(1) imposes an addition to tax equal to 5
percent of the underpayment of tax if any part of the
underpayment is attributable to negligence or intentional
disregard of rules or regulations. Section 6653(a)(2) provides
for a further addition to tax equal to 50 percent of the interest
due on the portion of the underpayment attributable to negligence
or intentional disregard of rules or regulations. Negligence is
defined to include “any failure to reasonably comply with the Tax
Code, including the lack of due care or the failure to do what a
reasonable or ordinarily prudent person would do under the
circumstances.” Merino v. Commissioner, 196 F.3d 147, 154 (3d
Cir. 1999) (quoting Heasley v. Commissioner, 902 F.2d 380, 383
(5th Cir. 1990)), affg. T.C. Memo. 1997-385.
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