Eleanor Simon - Page 25

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                    This Court has held that when taxpayers fail to                   
               fulfill their duty of inquiry, they are ordinarily                     
               charged with constructive knowledge of any understate-                 
               ments on their returns.  Demirjian v. Commissioner,                    
               T.C. Memo. 2004-22; Cohen v. Commissioner, T.C. Memo.                  
               1987-537 * * *.  Accordingly, having failed her duty of                
               inquiry, petitioner is charged with constructive knowl-                
               edge of the tax due on the return.  See Castle v.                      
               Commissioner, T.C. Memo. 2002-142 n.7; * * *.                          
                  *       *       *       *       *       *       *                   
                    Plaintiff [sic] presented no evidence to the IRS                  
               on this factor [knowledge or reason to know positive                   
               factor] because she claimed that she was unaware that                  
               tax was due when the return was filed.  Due to the                     
               absence of evidence at the administrative level, this                  
               factor does not favor relief.  As argued above, peti-                  
               tioner is held to have constructive knowledge of the                   
               tax due per return.                                                    
          In further support of respondent’s argument that the knowledge or           
          reason to know positive factor is not present in the instant                
          case, respondent asserts on brief:                                          
                    Petitioner argues that the determination is arbi-                 
               trary because the IRS did not consider whether peti-                   
               tioner knew the tax would not be paid.  The argument is                
               hollow because petitioner’s alleged ignorance of the                   
               tax is factually and logically divergent from alleging                 
               knowledge that the tax would not be paid.  It is illog-                
               ical to allege that one was ignorant that tax was due                  
               but one had knowledge that the tax would not be paid.                  
                    Petitioner’s argument is flawed because it relies                 
               on the supposed failure of the IRS to consider these                   
               divergent factual allegations.  Petitioner alleged to                  
               be ignorant of the tax, which the IRS rejected.  Peti-                 
               tioner cannot bemoan that the determination was arbi-                  
               trary because the IRS did not consider a factual issue                 
               that was factually divergent and could not be raised,                  
               ie., knowledge regarding payment of the tax.                           
                  *       *       *       *       *       *       *                   







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Last modified: May 25, 2011