Jeffrey Ercolino - Page 10

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          some of the facts in this case support the imposition of the                
          penalty.  For example, the February order refers only to child              
          support, and the above-quoted portion of the divorce decree                 
          establishes that petitioner’s former spouse waived any right to             
          alimony or spousal support.  We assume that petitioner was well             
          aware of this as the divorce decree expressly states that he                
          was advised by counsel during the divorce proceedings.  Be that             
          as it may, he claimed an alimony deduction.                                 
               On the other hand, we do not view the deduction here in                
          dispute to be one that “would seem to a reasonable and prudent              
          person to be ‘too good to be true’ under the circumstances”.                
          Sec. 1.6662-3(b)(1)(ii), Income Tax Regs.  Furthermore, other               
          than the nature of petitioner’s employment, the record contains             
          nothing about his “knowledge, experience and education”, sec.               
          1.6664-4(b), Income Tax Regs., that would have relevance to the             
          imposition of the penalty.                                                  
               Similarly, the record fails to disclose how petitioner                 
          treated support payments made in prior years on his Federal                 
          income tax returns for those years.  The absence of such                    
          information, coupled with references to “child and spousal                  
          support” (emphasis added) in the stipulation of facts and May               
          order, undermines respondent’s position that the imposition                 









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