Jorge O. and Clelia E. Svoboda - Page 15

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          shown by the greater of 10 percent of the tax required to be                
          shown or $5,000.  Sec. 6662(d)(1)(A).                                       
               The Commissioner has the burden of production under section            
          7491(c) with respect to the liability of any individual for a               
          penalty imposed by the Internal Revenue Code and must come                  
          forward with sufficient evidence indicating that it is                      
          appropriate to impose the penalty.  See Higbee v. Commissioner,             
          116 T.C. 438, 446-447 (2001).  Once the Commissioner meets his              
          burden of production, the taxpayer must come forward with                   
          persuasive evidence that the Commissioner's determination as to             
          the penalties is incorrect or that the taxpayer had reasonable              
          cause or substantial authority for his position.  See id. at 447;           
          sec. 1.6664-4, Income Tax Regs.                                             
               We have sustained respondent's determination of a $73,374              
          increase in petitioner's taxable wages for tax year 2002.9  In              
          petitioners' circumstances, the omission10 would produce an                 
          understatement exceeding the greater of $5,000 or 10 percent of             
          the tax required to be shown on their return.  Accordingly,                 

               9 Petitioners' reporting of the proceeds from the stock                
          option transactions as capital gains did not offset this                    
          omission, as the capital gains claimed with respect to the stock            
          option transactions were absorbed by petitioners' reported                  
          capital losses in excess of $300,000.                                       
               10 Petitioners have also conceded that they were not                   
          entitled to a $7,000 deduction claimed with respect to an IRA               
          contribution.  Petitioners have offered no argument to the effect           
          that the portion of the underpayment attributable to this item is           
          due to reasonable cause or any other mitigating factor.                     





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