                              T.C. Memo. 2014-91



                        UNITED STATES TAX COURT


            JACOB LUSTIG AND CYNTHIA LAM, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 3729-13.                        Filed May 19, 2014.



      Jeffrey Marc Weiss, for petitioners.

      Sarah E. Sexton, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      NEGA, Judge: Respondent issued a notice of deficiency on December 4,

2012, determining deficiencies in petitioners’ Federal income tax of $9,508,

$11,330, and $15,854 for 2008, 2009, and 2010, respectively, and accuracy-related

penalties under section 6662(a) related to tax years 2008, 2009, and 2010 of
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[*2] $1,902, $2,266, and $3,171, respectively.1 The only issue remaining for

decision is whether petitioners are liable for the section 6662(a) accuracy-related

penalties by reason of any substantial understatement of income tax or negligence

or disregard of rules or regulations. We hold that they are.

                               FINDINGS OF FACT

       Some of the facts have been stipulated and are so found. The stipulation of

facts, the stipulation of settled issues, and the attached exhibits are incorporated

herein by this reference. Petitioners resided in Alameda, California, at the time

they filed their petition.

       Petitioner wife (Ms. Lam) held a 50% interest in the Islanders Associates,

LLC (Islanders), during the years at issue. Islanders owned a building with

several rental units and employed a property manager to advertise and collect

rents. Because of her ownership interest in Islanders, Ms. Lam was aware that

rental income is includible in gross income.

       Petitioners’ residential property includes a cottage behind their house

(cottage). Petitioners rented out the cottage and received rental payments of


       1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure. All monetary amounts are rounded to
the nearest dollar.
                                         -3-

[*3] $14,070 in tax year 2008, $14,400 in tax year 2009, and $14,400 in tax year

2010. Petitioners failed to report any of the income received from the cottage

rental on their 2008, 2009, and 2010 tax return.

      Petitioners hired tax return preparers to prepare and file their 2008, 2009,

and 2010 returns. Petitioners employed Stanley Pollock to prepare their 2008

return and Amir Zarrati to prepare their 2009 and 2010 returns. Petitioners tracked

business expenses and receipts related to Islanders in QuickBooks which they then

gave in Excel spreadsheet form to Mr. Pollock for 2008 and Mr. Zarrati for 2009

and 2010. Petitioners never gave either Mr. Pollock or Mr. Zarrati any

information relating to the rental income from the cottage. Consequently, neither

Mr. Pollock nor Mr. Zarrati included this income in the preparation of petitioners’

tax returns. At trial Ms. Lam testified that she did not review these tax returns

before filing them with the Internal Revenue Service.

      Petitioners filed a timely petition with this Court arguing that they were not

liable for the section 6662(a) accuracy-related penalties for 2008, 2009, and 2010.

The parties filed a stipulation of settled issues in which petitioners conceded that

they were liable for the tax deficiencies determined in respondent’s notice of

deficiency for all three tax years. They also agreed that they (i) were not entitled

to certain deductions but were entitled to some additional deductions, (ii) had
                                         -4-

[*4] failed to report rents received from the cottage, and (iii) had failed to report

State and local income tax refunds. The stipulation left unresolved petitioners’

liability for the section 6662(a) penalties. A trial on the penalty issues was held on

February 11, 2014, in San Francisco, California.

                                      OPINION

      With respect to any penalty, section 7491(c) imposes the burden of

production on the Commissioner. Higbee v. Commissioner, 116 T.C. 438, 446

(2001). To fulfill this burden, the Commissioner must come forward with

sufficient evidence indicating that it is appropriate to impose the relevant penalty.

Sec. 7491(c); Higbee v. Commissioner, 116 T.C. at 446. Once the Commissioner

has met this burden, the taxpayer bears the burden of proving that the penalty is

inappropriate because, for example, the taxpayer acted with reasonable cause and

in good faith. Higbee v. Commissioner, 116 T.C. at 447.

      Section 6662(a) imposes a 20% penalty on an underpayment of tax

attributable to any of the causes listed in subsection (b). These causes include

“(1) Negligence or disregard of rules or regulations” and “(2) Any substantial

understatement of income tax.” Sec. 6662(b)(1) and (2). A substantial

understatement is defined as any understatement exceeding the greater of “(i) 10

percent of the tax required to be shown on the return for the taxable year, or (ii)
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[*5] $5,000.” Sec. 6662(d)(1). “Negligence” in section 6662(b)(1) includes any

failure to make a reasonable attempt to comply with the Code. Sec. 6662(c).

Negligence has also been defined as a failure to do what a reasonable person

would do under the circumstances. Leuhsler v. Commissioner, 963 F.2d 907, 910

(6th Cir. 1992), aff’g T.C. Memo. 1991-179; Antonides v. Commissioner, 91 T.C.

686, 699 (1988), aff’d, 893 F.2d 656 (4th Cir. 1990). The term “negligence” also

includes any failure by the taxpayer to keep adequate books and records or to

substantiate items properly. Sec. 1.6662-3(b)(1), Income Tax Regs. Respondent

determined that petitioners are liable for section 6662(a) penalties both because

they substantially understated their income tax for the years in issue and also

because the underpayments were due to negligence or disregard of rules or

regulations.

      The penalty under section 6662(a) does not apply with respect to any

portion of an underpayment if the taxpayer can demonstrate that the taxpayer (1)

had reasonable cause for such portion and (2) acted in good faith with respect to

such portion. Sec. 6664(c)(1). The regulations provide that reasonable cause and

good faith are determined on a case-by-case basis, taking into account all pertinent

facts and circumstances:
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      [*6] Generally, the most important factor is the extent of the
      taxpayer’s effort to assess the taxpayer’s proper tax liability.
      Circumstances that may indicate reasonable cause and good faith
      include an honest misunderstanding of fact or law that is reasonable
      in light of all of the facts and circumstances, including the experience,
      knowledge, and education of the taxpayer. * * * Reliance on * * *
      professional advice * * * constitutes reasonable cause and good faith
      if, under all the circumstances, such reliance was reasonable and the
      taxpayer acted in good faith. * * *

Sec. 1.6664-4(b)(1), Income Tax Regs. To establish good faith and reasonable

cause through reliance on professional advice the taxpayer must show that “(1)

[t]he adviser was a competent professional who had sufficient expertise to justify

reliance, (2) the taxpayer provided necessary and accurate information to the

adviser, and (3) the taxpayer actually relied in good faith on the adviser’s

judgment.” Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 99 (2000),

aff’d, 299 F.3d 221 (3d Cir. 2002).

      Petitioners’ failure to report rental income from the cottage constitutes

negligence. Additionally, petitioners failed to review their tax returns before

filing them. Petitioners and respondent stipulated that petitioners were not entitled

to certain deductions claimed on their 2008, 2009, and 2010 returns. Because

respondent has met his burden of establishing petitioners’ negligence, we need not
                                         -7-

[*7] determine whether there was a substantial understatement of income tax for

purposes of the section 6662(a) penalty. See sec. 1.6662-2(c), Income Tax Regs.

      Petitioners argue the penalties should be waived because they acted in good

faith in preparing and filing their 2008, 2009, and 2010 tax returns. However, Ms.

Lam conceded that she and her husband did not review those tax returns. Ms. Lam

stated throughout the trial that she and her husband (i) were too busy to review the

returns, (ii) assumed the returns were prepared accurately, and (iii) were ignorant

as to the legal requirements for filing their returns. Petitioners essentially argue

that they relied on their tax return preparers and their good-faith reliance on the

preparers should negate the section 6662(a) penalties.

      Without more than Ms. Lam’s self-serving testimony, we find that

petitioners have not overcome their burden of proving reasonable cause and good-

faith reliance on a tax preparer. Ms. Lam knew rental income was includable in

gross income by virtue of her ownership stake in Islanders. In addition to other

items of unreported income, such as the State and local income tax refunds,

petitioners never provided their tax return preparers with any information related

to the rental income generated from the cottage. Thus, petitioners did not rely in

good faith on their tax return preparers since they did not give the preparers all of
                                        -8-

[*8] the necessary information related to their gross income. Moreover,

petitioners admit they did not review the returns for accuracy before filing them.

      Accordingly, the Court sustains respondent’s determination that petitioners

are liable for section 6662(a) accuracy-related penalties for their 2008, 2009, and

2010 tax years. In reaching our holding, we have considered all arguments made,

and, to the extent not mentioned above, we conclude they are moot, irrelevant, or

without merit.

      To reflect the foregoing,


                                              Decision will be entered under Rule

                                       155.
