Carl L. and Eugenia T. Henn - Page 16




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          shelter item, however, different standards apply.  First, in                
          addition to showing the existence of substantial authority, a               
          taxpayer must show that he reasonably believed that the tax                 
          treatment claimed was more likely than not proper.  Sec.                    
          6661(b)(2)(C)(i)(II).  Second, disclosure, whether or not                   
          adequate, will not reduce the amount of the understatement.  Sec.           
          6661(b)(2)(C)(i)(I).6                                                       
               The understatement of tax of $5,124 on petitioners’ return             
          is greater than $5,000 and is greater than 10 percent of the tax            
          required to be shown on the return, or $1,614.  Consequently, it            
          is a substantial understatement of tax.  Sec. 6661(b)(1)(A).                
               Petitioners first argue that there was substantial authority           
          for claiming the loss.  Substantial authority exists when “the              
          weight of authorities supporting the treatment is substantial in            
          relation to the weight of the authorities supporting contrary               
          positions.”  Sec. 1.6661-3(b)(1), Income Tax Regs.  Petitioners             
          argue that at the time they claimed the loss no authority existed           
          indicating that deducting the loss was improper.  Lack of                   
          authority, however, necessarily cannot provide the substantial              
          authority required under the statute and regulations.  See, e.g.,           
          Hunt v. Commissioner, T.C. Memo. 2001-15; Robnett v.                        
          Commissioner, T.C. Memo. 2001-17.  Petitioners also point to the            


          6As a result of our findings, discussed below, we need not                  
          decide whether the tax shelter provisions are applicable in this            
          case.                                                                       





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