Santa Monica Pictures, LLC, Perry Lerner, Tax Matters Partner - Page 209

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          tax required to be shown on the return for the taxable year, over           
          the amount of the tax imposed which is shown on the return.  Sec.           
          6662(d)(2)(A).195   The amount of the understatement is reduced by          
          that portion of the understatement that is attributable to the              
          tax treatment of any item by the taxpayer for which there is or             
          was substantial authority, if the relevant facts affecting the              
          item’s tax treatment are adequately disclosed in the return or in           
          a statement attached to the return and there is a reasonable                
          basis for the tax treatment of such item by the taxpayer.  Sec.             
          6662(d)(2)(B).  Petitioner relies on the substantial authority              
          standard as a defense to the application of the understatement              
          penalty.196                                                                 
               The substantial authority standard is an objective standard            
          involving an analysis of the law and application of the law to              


               195 In a partnership-level proceeding, we do not calculate             
          the understatement or determine whether it is substantial for               
          purposes of sec. 6662.  Because the penalties apply at the                  
          partner level, the understatement must be calculated on the basis           
          of the partner’s return and is the subject of a computational               
          adjustment.  A partner may file a claim for refund on the ground            
          that the Secretary erroneously imposed any penalty which relates            
          to an adjustment to a partnership item.  Sec. 6230(c)(1)(C), (4);           
          see sec. 301.6221-1(c) and (d), Proced. & Admin. Regs.                      
          (applicable to partnership taxable years beginning on or after              
          Oct. 4, 2001).                                                              
               196 Even if sec. 7491(c) is applicable, respondent is not              
          required to introduce evidence as to substantial authority.                 
          Petitioner bears both the burden of production and the burden of            
          proof as to these issues.  See Higbee v. Commissioner, 116 T.C.             
          438, 446-447 (2001); H. Conf. Rept. 105-599, at 241 (1998), 1998-           
          3 C.B. 747, 995.                                                            





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