Ronald B. and Annette C. Talmage - Page 87




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              Section 6662(a) does not apply to any portion of an                     
         underpayment subject to the fraud penalty under section 6663.                
         Sec. 6662(b).  When a joint return is filed and one spouse is                
         found liable for the fraud penalty, imposing the accuracy-related            
         penalty on the other spouse with respect to the same underpayment            
         would result in impermissible stacking.  Said v. Commissioner,               
         T.C. Memo. 2003-148; Zaban v. Commissioner, T.C. Memo. 1997-479.             
              Petitioners filed a joint return for 2002.  Respondent                  
         imposed the accuracy-related penalty on Annette C. Talmage for the           
         same underpayment of tax upon which the Court found petitioner               
         liable for the fraud penalty.  Therefore, the Court finds that               
         imposing the accuracy-related penalty on her would result in                 
         impermissible stacking.  Accordingly, Annette C. Talmage is not              
         liable for the section 6662(a) accuracy-related penalty for 2002.            
              C.   Section 6651(a)(1) Addition to Tax                                 
              Section 6651(a)(1) imposes an addition to tax for failure to            
         timely file a return.  The parties stipulated petitioner failed to           
         timely file income tax returns for 1998 and 1999.  Therefore, the            
         Court finds respondent met his burden of production.                         
              Because respondent has met his burden, petitioner bears the             
         burden of proving his failure to timely file was due to reasonable           
         cause and not willful neglect.  To show reasonable cause,                    
         petitioner must show he “exercised ordinary business care and                
         prudence and was nevertheless unable to file the return within the           







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