Raymond E. Vogt, Jr. - Page 18




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          E.   Penalty Under Section 6662 and Additions to Tax Under                  
               Sections 6651(a)(1) and 6654                                           
               1.   Burden of Proof                                                   
               The Commissioner bears the initial burden of production with           
          respect to petitioner’s liability for additions to tax under                
          sections 6651(a)(1) and 6654(a) and penalties under section                 
          6662(a).  Sec. 7491(c); Rule 142(a); Higbee v. Commissioner, 116            
          T.C. 438, 446-447 (2001).  To meet this burden, respondent must             
          come forward with sufficient evidence indicating it is                      
          appropriate to impose the additions to tax and penalties.  Higbee           
          v. Commissioner, supra at 446-447.  Respondent’s burden may be              
          met by facts deemed admitted pursuant to Rule 37(c).  Doncaster             
          v. Commissioner, 77 T.C. at 337; see Marshall v. Commissioner, 85           
          T.C. at 272-273.  The taxpayer bears the burden of proof as to              
          any exception to the additions to tax or penalties.  See sec.               
          7491(c); Rule 142(a); Higbee v. Commissioner, supra at 446-447.             
               2.   Section 6662(a) Penalty for 2000                                  
               Having found that petitioner is not liable for a fraud                 
          penalty for the year 2000, we consider respondent’s argument in             
          the alternative that petitioner is liable for an accuracy-related           
          penalty under section 6662.  Section 6662(a) imposes a 20-percent           
          penalty on the portion of an underpayment attributable to, inter            
          alia, negligence or disregard of rules or regulations.                      
               It was deemed admitted under Rule 37(c) that petitioner was            
          negligent and reckless in the preparation of his Form 1040, for             






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