James M. and Ruth J. Riley - Page 34

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          2003.  The depreciation deductions alone exceed the amounts                 
          petitioners could deduct using the standard mileage rate.                   
               The deductions computed under the standard mileage rate are            
          in lieu of separate deductions for depreciation and actual                  
          operating costs.  Since petitioners are allowed a greater                   
          deduction for actual costs, they are not allowed a deduction for            
          transportation costs using the standard mileage rate.  See, e.g.,           
          Tesar v. Commissioner, T.C. Memo. 1997-207; Velinsky v.                     
          Commissioner, T.C. Memo. 1996-180.                                          
               In addition to the allowable deduction of $7,000 for                   
          depreciation of the truck for each year in issue, petitioners are           
          entitled to deduct fuel expenses of $303.75 for 2001, $168.22 for           
          2002, and $264.84 for 2003.                                                 
          D.   Accuracy-Related Penalties                                             
               Respondent determined accuracy-related penalties against               
          petitioners under section 6662(a) for the years in issue.                   
          Section 7491(c) places on the Commissioner the “burden of                   
          production” with respect to a taxpayer’s liability for any                  
          penalty, addition to tax, or additional amount (collectively,               
          penalty).  In order to satisfy the burden of production under               
          section 7491(c), the Commissioner must produce evidence that it             
          is appropriate to impose the relevant penalty.  Higbee v.                   
          Commissioner, 116 T.C. 438, 446 (2001).  Once the Commissioner              
          has met this burden, the taxpayer must come forward with                    






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