Michael J. Downing and Sandra M. Downing - Page 14

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          of section 701 of Pub.L. 104-168, 110 Stat. 1452, 1463 (1996),              
          Taxpayer Bill of Rights 2.)                                                 
               Respondent contends:  the Commissioner’s position was                  
          substantially justified.  In particular, respondent contends:               
          (1) It was reasonable to take the position that petitioners “did            
          not have a valid matrimonial agreement under Louisiana law”; (2)            
          it was reasonable “to take whipsaw or inconsistent positions to             
          protect the revenue”; and (3) it was reasonable to charge Sandra            
          (as well as Michael) with civil tax fraud.                                  
               Sandra contends that “Respondent had no reasonable basis in            
          fact or law to conclude [(1)] that the Marital Agreement did not            
          exist, was invalid, or was not timely filed in St. Tammany                  
          Parish”; (2) that Louisiana law required a second filing; (3)               
          that a 1991 Jefferson Parish filing would not satisfy any second            
          filing requirement that there might be under Louisiana law; and             
          (4) “that any fraud penalty existed on Petitioner’s [Sandra’s]              
          tax return for either year in question.”                                    
               The justification for each of respondent’s positions must be           
          separately determined.  Foothill Ranch Co. Partnership v.                   
          Commissioner, 110 T.C. 94, 97 (1998).                                       
               We agree with respondent as to income-splitting.  We agree             
          with Sandra as to civil fraud penalties, to the extent they                 
          exceeded negligence penalties.                                              








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