Raymond T. and Patricia Murphy - Page 12

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               In this case, Murphy did contest in his petition the penalty           
          on all the items that the Commissioner disallowed.  It was                  
          therefore up to the Commissioner to come forward with at least              
          some evidence that their imposition was justified--for example,             
          by showing that Murphy hadn’t kept adequate books and records on            
          those items.  See, e.g., Higbee v. Commissioner, 116 T.C. 438,              
          449 (2001); Biazar v. Commissioner, T.C. Memo. 2004-270.                    
               This he did not do.  Instead, he argues that Murphy’s                  
          concession to the disallowance of these minor items is ipso facto           
          proof of Murphy’s negligence.  This argument is much too broad--            
          conceding that a deduction is not allowable is not the same as              
          conceding that it was taken negligently or in intentional                   
          disregard of the rules and regulations.                                     
               The Commissioner’s alternate basis for the penalty is that             
          Murphy substantially understated his tax liability.  An                     
          understatement is deemed “substantial” if it exceeds the greater            
          of ten percent of the tax required to be shown on the return, or            
          $5,000.  Sec. 6662(d)(1)(A); sec. 1.6662-4(b)(1), Income Tax                
          Regs.  As we reasoned in Perry Funeral Home v. Commissioner, T.C.           
          Memo. 2003-340, the Commissioner satisfies his burden under                 
          section 7491(c) to show some evidence of understatement by                  
          pointing to a taxpayer’s concession that at least some deductions           
          were not allowable.  Whether any understatement resulting from              






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