-22- 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.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
Last modified: May 25, 2011