T.C. Summary Opinion 2004-175 

UNITED STATES TAX COURT

MARIE SUZE BIEN-AIME, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3456-04S. Filed December 27, 2004.

Marie Suze Bien-Aime, pro se.

Miriam C. Dillard, for respondent.

 DEAN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed. Unless otherwise

indicated, all subsequent section references are to the Internal

Revenue Code in effect for the years in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure. 
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1Respondent concedes that petitioner reported $936 of

nonemployee compensation from Sunrider International and the

corresponding self-employment tax.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.

Respondent determined deficiencies in petitioner's Federal

income taxes and accuracy-related penalties as follows:

 Penalty

Year Deficiency Sec. 6662(a)

2000 $10,235 $1,994.80

2001 8,265 1,275.80

After a concession,1 the issues remaining for decision are

whether petitioner: (1) Received unreported income during 2000

and 2001; (2) is entitled to deductions on Schedule A, Itemized

Deductions, in excess of those allowed by respondent for 2000 and

2001; and (3) is liable for accuracy-related penalties for 2000

and 2001.

Background

The stipulation of facts and the exhibits received into

evidence are incorporated herein by reference. Petitioner

resided in Coral Springs, Florida, at the time the petition was

filed.

A. Petitioner's 2000 Tax Return

For 2000, petitioner paid a return preparer to complete her

Form 1040, U.S. Individual Income Tax Return. On the return,

petitioner reported $63,885 in wages and $7,318 of Federal tax
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withheld. Petitioner reported no other income for 2000. 

Petitioner signed the return without reviewing it when it was

presented to her by her preparer. Petitioner described him as a

"professional". 

On her 2000 Schedule A, petitioner reported $20,014 of

medical and dental expenses, $3,353 of real estate taxes, $8,621

of mortgage interest, $4,000 of charitable contributions and

$18,719 of miscellaneous business expenses.

1. Petitioner's Income

Respondent received Forms W-2, Wage and Tax Statement, from

third-party payors reporting that petitioner received the

following wages during 2000:

Vendor Amount

Vitas Healthcare $38,401 

Harrison Group 2,224 

Sunshine Companies II 6,181 

Memorial Healthcare System 9,938 

Holy Cross Long Term Care 9,945 

 Total 66,689

Respondent also received information from third-party payors

reporting additional payments to petitioner. Fidelity

Investments issued two Forms 1099-B, Proceeds From Broker and

Barter Exchange Transactions, reporting $5,097 in stock proceeds

paid to petitioner. Sunrider International issued a Form 1099-

MISC, Miscellaneous Income, reporting nonemployee compensation of

$936. First Union National Bank and Washington Mutual Bank each

issued a Form 1099-INT, Interest Income, reporting interest
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income of $74 and $11, respectively. Fiserv Securities issued a

Form 1099-DIV, Dividends and Distributions, reporting $570 of

capital gain dividends and $58 of ordinary dividends.

2. Petitioner's Deductions

Respondent received a Form 1098, Mortgage Interest

Statement, issued by Market Street Mortgage for 2000 reporting

that petitioner paid $11,006 in mortgage interest. Respondent

allowed petitioner a mortgage interest deduction for this higher

amount. Respondent also allowed petitioner's reported deduction

for real estate taxes. Petitioner's remaining deductions were

disallowed due to lack of substantiation.

3. Accuracy-Related Penalty

Respondent determined that petitioner is liable for an

accuracy-related penalty under section 6662(a) for 2000.

B. Petitioner's 2001 Tax Return

For 2001, petitioner again retained the same preparer. On

her Form 1040, she reported $56,621 in wages and $2,024 of income

from capital gains. Petitioner also reported $8,386 of Federal

tax withheld. She reported no other income for 2001. 

Petitioner did not review the return before signing and mailing

it.
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On her 2001 Schedule A, petitioner reported $20,044 of

medical and dental expenses, $3,353 of real estate taxes, $8,621

of mortgage interest, $4,000 of charitable contributions and

$18,132 of miscellaneous business expenses.

1. Petitioner's Income

Respondent received Forms W-2 from third-party payors

reporting that petitioner received the following wages during

2001:

Vendor Amount

Kindred Nursing Centers $10,403 

Vitas Healthcare 15,551 

Memorial Healthcare System 40,092 

Holy Cross Long Term Care 976

 Total 67,022

Respondent also received information from third-party payors

reporting additional payments to petitioner. Washington Mutual

Bank issued a Form 1099-INT reporting interest income of $21. 

Fiserv Securities issued both a Form 1099-DIV reporting $19 of

capital gain dividends and Form 1099-B reporting $2,000 of stock

proceeds.

2. Petitioner's Deductions

Respondent received Forms 1098 issued by Market Street

Mortgage and Alliance Mortgage for 2001 reporting that petitioner

paid $4,551 and $6,333, respectively in mortgage interest. 

Respondent allowed petitioner a mortgage interest deduction for

this higher amount. Respondent also allowed petitioner's
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reported deduction for real estate taxes. Petitioner's remaining

deductions were disallowed due to lack of substantiation.

3. Accuracy-Related Penalty

Respondent determined that petitioner is liable for an

accuracy-related penalty under section 6662(a) for 2001.

Discussion

Generally, the Commissioner's determinations of unreported

income in a notice of deficiency are presumed correct, and the

taxpayer has the burden of proving that those determinations are

erroneous. See Rule 142(a); Welch v. Helvering, 290 U.S. 111,

115 (1933). In certain circumstances, however, section

7491(a)(1) places the burden of proof on the Commissioner. 

Petitioner has not alleged or shown that section 7491 is

applicable in this case.

Petitioner did not call any witnesses or otherwise introduce

any evidence to show error in respondent's determinations of her

proper income tax liability. Petitioner, in fact, made no

argument that respondent's adjustments are incorrect. She feels

she was misled by her return preparer. The Court finds that

petitioner has failed to meet her burden and, subject to a

concession by respondent, sustains respondent's determination

with respect to the 2000 and 2001 unreported income.
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Petitioner has not provided any evidence to substantiate an

allowance of itemized deductions in excess of those allowed by

respondent. Respondent's determination is sustained.

Under section 7491(c), the Commissioner has the burden of

production in any court proceeding with respect to the liability

of any individual for any penalty or addition to tax. Higbee v.

Commissioner, 116 T.C. 438, 446-447 (2001). In order to meet his

burden of production, the Commissioner must come forward with

sufficient evidence indicating that it is appropriate to impose

the addition to tax for failure to file in the particular case.

Id. at 446. Once the Commissioner meets his burden of

production, the taxpayer must come forward with evidence

sufficient to persuade a court that the Commissioner's

determination is incorrect. Id. at 447. 

Respondent determined petitioner is liable for an

accuracy-related penalty pursuant to section 6662(a) for each of

the years in issue. Section 6662(a) imposes a penalty of 20

percent of the portion of the underpayment which is attributable

to, inter alia, negligence or disregard of rules or regulations. 

Sec. 6662(b)(1). Negligence is the "'lack of due care or failure

to do what a reasonable and ordinarily prudent person would do

under the circumstances.'" Neely v. Commissioner, 85 T.C. 934,

947 (1985) (quoting Marcello v. Commissioner, 380 F.2d 499, 506

(5th Cir. 1967)). It includes any failure by the taxpayer to
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keep adequate books and records or to substantiate items

properly. Sec. 1.6662-3(b)(1), Income Tax Regs. The term

"disregard" includes any careless, reckless, or intentional

disregard. Sec. 6662(c). 

No penalty shall be imposed if it is shown that there was

reasonable cause for the underpayment and the taxpayer acted in

good faith with respect to the underpayment. Sec. 6664(c). The

determination of whether a taxpayer acted with reasonable cause

and in good faith is made on a case-by-case basis, taking into

account all pertinent facts and circumstances. The most

important factor is the extent of the taxpayer's effort to assess

the taxpayer's proper tax liability. 

The evidence in the record shows that petitioner failed to

report substantial amounts of income for her 2000 and 2001 tax

years. Petitioner made no effort to review the returns before

signing them and blamed her return preparer for the omissions. 

Taxpayers have a duty to read a return and to make sure all

items are included. Magill v. Commissioner, 70 T.C. 465, 479-480

(1978) (citing Bailey v. Commissioner, 21 T.C. 678, 687 (1954)),

affd. 651 F.2d 1233 (6th Cir. 1981). Petitioner's failure to

carefully review her return was not reasonable. See Guenther v.

Commissioner, T.C. Memo. 1995-280. On the basis of the record,

the Court concludes that petitioner is liable for the

accuracy-related penalty under section 6662(a) for 2000 and 2001.
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Reviewed and adopted as the report of the Small Tax Case

Division.

To reflect the foregoing,

Decision will be entered

under Rule 155.