Jean-Remy Facq and Jennifer Huff-Facq - Page 22

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          exclude the gain of approximately $16.9 million at the time they            
          filed their return.16                                                       
          Conclusion                                                                  
               After careful consideration of the facts and circumstances             
          of this case, we sustain respondent’s deficiency determination              
          but find that petitioners are not liable for the accuracy-related           
          penalty under section 6662(a).                                              
               To reflect the foregoing,                                              

                                                  An order and decision               
                                             will be entered for respondent           
                                             as to the deficiency but for             
                                             petitioners as to the penalty.           





               16Petitioners also urged us to conclude that the penalty               
          portion of the deficiency notice was null and void because                  
          respondent “automatically” asserted the accuracy-related penalty            
          without first considering whether any exceptions applied.                   
          Petitioners, therefore, are essentially asking us to peer behind            
          the deficiency notice, which we generally do not do and will not            
          do in this case.  See Scar v. Commissioner, 814 F.2d 1363, 1368             
          (9th Cir. 1987), revg. 81 T.C. 855 (1983); Edwards v.                       
          Commissioner, T.C. Memo. 2002-169, affd. on unrelated issue 119             
          Fed. Appx. 293 (D.C. Cir. 2005); Corcoran v. Commissioner, T.C.             
          Memo. 2002-18 (and cases cited therein), affd. 54 Fed. Appx. 254            
          (9th Cir., 2002).  Specifically, petitioners’ reliance on Scar,             
          is misplaced.  Scar explicitly states that the Commissioner need            
          not explain how the determinations were made.  This Court and the           
          Court of Appeals, for the Ninth Circuit have limited the                    
          invalidation of a deficiency notice under Scar to circumstances             
          where the deficiency notice reveals on its face that the                    
          Commissioner failed to make a determination.  See Clapp v.                  
          Commissioner, 875 F.2d 1396, 1402 (9th Cir. 1989); Campbell v.              
          Commissioner, 90 T.C. 110 (1988); Edwards v. Commissioner, supra.           




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