Jean-Remy Facq and Jennifer Huff-Facq - Page 19

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          II. Accuracy-Related Penalty                                                
               Respondent determined that petitioners are liable for the              
          accuracy-related penalty due to negligence or disregard of rules            
          and regulations.13  See sec. 6662(b)(1).  Respondent                        
          alternatively determined that petitioners were liable for the               
          accuracy-related penalty because they substantially understated             
          their tax.14  See sec. 6662(b)(2).                                          
               We note that this is the first time the Commissioner is                
          asserting the penalty in cases involving stock purchased through            
          a margin account.  Hilen v. Commissioner, T.C. Memo. 2005-226;              
          Facq v. United States, 363 F. Supp. 2d 1288 (W.D. Wash. 2005);              
          Miller v. United States, 345 F. Supp. 2d 1046 (N.D. Cal. 2004);             
          Palahnuk v. United States, supra.                                           
               While respondent bears the initial burden of production as             
          to the accuracy-related penalty and must come forward with                  
          sufficient evidence that it is appropriate to impose the penalty,           
          the taxpayer bears the burden of proof as to any exception to the           
          accuracy-related penalty.  See sec. 7491(c); Rule 142(a); Higbee            
          v. Commissioner, 116 T.C. 438, 446-447 (2001).  One such                    


               13Negligence is the lack of due care or failure to do what a           
          reasonable and ordinarily prudent person would do under the same            
          circumstances.  Neely v. Commissioner, 85 T.C. 934 (1985).                  
          Disregard is characterized as any careless, reckless, or                    
          intentional disregard.  Sec. 6662(c); sec. 1.6662-3(b)(1) and               
          (2), Income Tax Regs.                                                       
               14There is a substantial understatement of tax if the amount           
          of the understatement exceeds the greater of either 10 percent of           
          the tax required to be shown on the return, or $5,000.  Sec.                
          6662(a), (b)(1) and (2), (d)(1)(A); sec. 1.6662-4(a) and (b)(1),            
          Income Tax Regs.                                                            




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