Wayne B. Bailey - Page 19




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               B.  Burden of Proof                                                    
               The Commissioner has the burden of production with respect             
          to the accuracy-related penalty.  Sec. 7491(c).  To meet this               
          burden, the Commissioner must produce sufficient evidence                   
          indicating that it is appropriate to impose the penalty.  See               
          Higbee v. Commissioner, 116 T.C. 438, 446 (2001).  Once the                 
          Commissioner meets this burden of production, the taxpayer must             
          come forward with persuasive evidence that the Commissioner’s               
          determination is incorrect.  Rule 142(a); see Higbee v.                     
          Commissioner, supra.  The taxpayer may meet this burden by                  
          proving that he or she acted with reasonable cause and in good              
          faith.  See sec. 6664(c)(1); see also Higbee v. Commissioner,               
          supra; sec. 1.6664-4(b)(1), Income Tax Regs.                                
               C.  Analysis                                                           
               In the matter before us, respondent has met his burden of              
          production under section 7491(c).  The record shows that both               
          petitioner’s 2001 and 2002 income tax returns contain                       
          understatements of tax greater than $5,000.  See sec.                       
          6662(d)(1)(A)(ii).  Accordingly, petitioner bears the burden of             
          proving that the accuracy-related penalties should not be imposed           
          with respect to any portion of the understatements for which he             
          acted with reasonable cause and in good faith.  See sec.                    
          6664(c)(1); Higbee v. Commissioner, supra at 446.                           








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