Rhett Rance Smith and Alice Avila Smith, et al. - Page 75




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          by a return position that is merely arguable.  Sec. 1.6662-                 
          3(b)(3), Income Tax Regs.                                                   
               Negligence may be indicated when a taxpayer fails to                   
          ascertain the correctness of an item on the return that would               
          seem to a reasonable and prudent person to be “too good to be               
          true” under the circumstances.  Sec. 1.6662-3(b)(1)(ii), Income             
          Tax Regs.  A substantial understatement of income tax is defined            
          as an understatement of income tax that exceeds the greater of 10           
          percent of the tax required to be shown on the tax return or                
          $5,000.  Sec. 6662(d)(1)(A).                                                
               As already discussed, the Commissioner bears the burden of             
          production in any court proceeding with respect to the penalty,             
          addition to tax, or additional amount imposed by title 26.  Sec.            
          7491(c).  The burden imposed on the Commissioner is to come                 
          forward with sufficient evidence regarding the appropriateness of           
          applying a particular addition to tax or penalty against the                
          taxpayer.  Wheeler v. Commissioner, 127 T.C. 200 (2006); Higbee             
          v. Commissioner, 116 T.C. 438 (2001).  Section 7491(c) does not,            
          however, require the Commissioner to introduce evidence of                  
          reasonable cause, substantial authority, or similar provisions.             
               Section 6664 provides an exception to the imposition of                
          accuracy-related penalties if the taxpayer shows that there was             
          reasonable cause for the underpayment and that the taxpayer acted           
          in good faith.  Sec. 6664(c); United States v. Boyle, 469 U.S.              
          241 (1985).  Whether a taxpayer acted with reasonable cause and             





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