James S Sparkman - Page 35

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        liability.”  Id.   The taxpayer bears the burden of proving that              
        he falls within this exception.  Higbee v. Commissioner, supra at             
        447.                                                                          
             Sparkman claims he had reasonable cause for claiming the HEH             
        losses because of ongoing litigation in Hvidding v. Commissioner,             
        T.C. Memo. 2003-151, and Richter v. Commissioner, T.C. Memo. 2002-            
        90, concerning “this same issue”.  These cases involved HEH                   
        customers’ right to claim energy credits; these cases do not                  
        provide reasonable cause for Sparkman’s failure to substantiate               
        his claimed HEH losses.                                                       
             Sparkman claims he had reasonable cause for failing to report            
        a portion of the HECO payments because the Form 1099 was never                
        received and (somewhat inconsistently) because he reasonably                  
        believed that HEH had reported the balance of the HECO income not             
        reported by Mercury Solar PTO.  We have found, as petitioners                 
        stipulated, that HECO issued a Form 1099 to Mercury Solar PTO for             
        all the payments in question.  The evidence does not establish                
        that HEH reported, or should have reported, the disputed HECO                 
        payments or that petitioner (who prepared the HEH returns)                    
        reasonably believed otherwise; more fundamentally, the evidence               
        does not establish that Sparkman had reasonable cause to believe              
        that the HECO payments were properly considered as income to                  
        anyone other than himself.  We hold that Sparkman is liable for               
        section 6662(a) accuracy-related penalties for all years at issue.            








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