William L. and Marsha G. Kidd - Page 12

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          attributable to personal physical injuries or physical sickness             
          and hold that none of that payment may be excluded from                     
          petitioners’ gross income under section 104(a)(2).  We note that            
          petitioners have not asserted that Kidd paid for any medical care           
          attributable to emotional distress, so as to come within the                
          exception described in the flush language of section 104(a), and            
          that the record does not establish that any such payments were in           
          fact made.                                                                  
               Respondent also determined that petitioners are liable for             
          the accuracy-related penalty under section 6662(a) and (d).                 
          Section 6662(a) and (d) imposes an accuracy-related penalty if              
          any portion of an underpayment is attributable to a substantial             
          understatement of income tax.  An understatement of income tax is           
          substantial if it exceeds 10 percent of the tax required to be              
          shown on the return or $5,000.  Sec. 6662(d)(1).  Respondent                
          bears the burden of production under section 7491(c) and must               
          come forward with sufficient evidence indicating that it is                 
          appropriate to impose an accuracy-related penalty.  Higbee v.               
          Commissioner, 116 T.C. 438, 446-447 (2001).  Once respondent has            
          met this burden, the taxpayer must come forward with persuasive             
          evidence that the accuracy-related penalty does not apply.  Id.             
          The taxpayer may establish, for example, that part or all of the            
          accuracy-related penalty is inapplicable because it is                      
          attributable to an understatement for which the taxpayer acted              






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