H. Robert Feinberg - Page 21

                                       - 21 -                                         
          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 highly             
          factual.                                                                    
               Respondent determined that petitioner is liable for                    
          negligence under section 6653(a)(1) and (2) with respect to the             
          underpayment of tax attributable to petitioner’s investment in              
          SAB Foam.  Respondent’s determination of negligence is presumed             
          correct, and petitioner has the burden of proving that he was 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                        
               A taxpayer may avoid liability for negligence under section            
          6653(a)(1) and (2) if he or she reasonably relied on competent              
          professional advice.  United States v. Boyle, 469 U.S. 241, 250-            

               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                   
          commencing after July 22, 1998.  Petitioner does not contend, nor           
          is there evidence, that the examination commenced after July 22,            
          1998, or that sec. 7491(c) is applicable in this case.                      





Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011