Robert S. Cohen and Margery Cohen - Page 20

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          exercise under the circumstances.  See Neely v. Commissioner, 85            
          T.C. 934, 947-948 (1985).  The pertinent question is whether a              
          particular taxpayer’s actions are reasonable in light of the                
          taxpayer’s experience, the nature of the investment, and the                
          taxpayer’s actions in connection with the transactions.  See                
          Henry Schwartz Corp. v. Commissioner, 60 T.C. 728, 740 (1973);              
          see also Turner v. Commissioner, T.C. Memo. 1995-363 (“When                 
          considering the negligence addition, we evaluate the particular             
          facts of each case, judging the relative sophistication of the              
          taxpayers as well as the manner in which the taxpayers approached           
          their investment.”).  The determination of negligence is factual.           
               Respondent determined that petitioners are liable for                  
          negligence under section 6653(a)(1) and (2) with respect to the             
          underpayment of tax attributable to petitioners’ investment in              
          SAB Foam.  Respondent’s determination of negligence is presumed             
          correct, and petitioners have the burden of proving that they               
          were not negligent.  See Rule 142(a); Welch v. Helvering, 290               
          U.S. 111, 115 (1933); see also Addington v. Commissioner, supra;            
          Goldman v. Commissioner, 39 F.3d 402, 407 (2d Cir. 1994), affg.             
          T.C. Memo. 1993-480; Luman v. Commissioner, 79 T.C. 846, 860-861            
          (1982); Bixby v. Commissioner, 58 T.C. 757, 791-792 (1972).9                

               9  Cf. sec. 7491(c), which places the burden of production             
          on the Commissioner with respect to a taxpayer’s liability for              
          penalties and additions to tax.  Sec. 7491(c) is effective for              
          court proceedings arising in connection with examinations                   
                                                             (continued...)           





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