Shahrooz S. and Shida S. Jamie - Page 8

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          subsequent years to the extent he has capital gains, plus excess            
          losses of up to $3,000.  Secs. 172(d)(2), 1211(b); see also Flora           
          v. Commissioner, T.C. Memo. 1965-64.                                        
               Respondent also determined accuracy-related penalties under            
          section 6662(a) for a substantial understatement of income tax on           
          petitioner’s income tax returns for the years in issue.  Under              
          section 7491(c), respondent has the burden of production with               
          regard to penalties and must come forward with sufficient                   
          evidence indicating that it is appropriate to impose the penalty.           
          Higbee v. Commissioner, 116 T.C. 438, 446 (2001).                           
               Under section 6662(a), a taxpayer may be liable for a                  
          penalty of 20 percent on the portion of an underpayment of tax              
          due to any substantial understatement of income tax.  Sec.                  
          6662(b)(2).  An understatement of income tax is “substantial” if            
          it exceeds the greater of 10 percent of the tax required to be              
          shown on the return or $5,000.  Sec. 6662(d)(1)(A).  The                    
          understatement is reduced to the extent that the taxpayer (1) has           
          substantial authority for the tax treatment of the item or                  
          (2) adequately disclosed his position and has a reasonable basis            
          for such position.  Sec. 6662(d)(2)(B).                                     
               In this case, the understatement on petitioner’s returns               
          meets the section 6662(d)(1)(A) definition of “substantial”, so             
          respondent has met that burden of production.  Petitioner has not           
          cited any substantial authority to support his argument that his            






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