                  T.C. Summary Opinion 2009-150



                     UNITED STATES TAX COURT



         KENNETH D. AND TRUDI A. WOODARD, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12463-07S.              Filed September 28, 2009.




     Kenneth D. and Trudi A. Woodard, pro se.

     Kristin Timmons, for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect when the petition was filed.1   Pursuant to

section 7463(b), the decision to be entered is not reviewable by



     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code, and Rule references are to the Tax Court
Rules of Practice and Procedure.
                                - 2 -

any other court, and this opinion shall not be treated as

precedent for any other case.

     Petitioners filed a joint Federal income tax return for

taxable year 2004.    Respondent determined that petitioners failed

to include in income $150,000 in distributions from individual

retirement accounts (IRA) in petitioner Kenneth Woodard’s name,

and respondent issued a notice of deficiency determining a

$27,606 deficiency and a $5,521 accuracy-related penalty pursuant

to section 6662(a).

     The sole issue for decision is whether petitioner Kenneth

Woodard is liable for the accuracy-related penalty.2

                              Background

     The parties have stipulated some of the facts, and we so

find.    We incorporate the stipulation of facts and the attached

exhibits by this reference.    When they filed the petition,

petitioners resided in Minnesota.

     Trudi Woodard was born in 1954, and Kenneth Woodard

(hereafter Mr. Woodard) was born in 1955.    Petitioners married in

1980, and in 2009 a Minnesota court entered a decree dissolving

their marriage.


     2
       After petitioners filed the petition, petitioner Trudi
Woodard requested relief under sec. 6015, commonly referred to as
innocent spouse relief. The Internal Revenue Service granted her
request for complete relief from joint liability under sec.
6015(b). Petitioner Kenneth Woodard does not dispute that Trudi
Woodard is entitled to this relief, and he concedes that the IRA
distributions are taxable income.
                                   - 3 -

       Mr. Woodard holds an undergraduate degree in accounting.      He

earned a master’s of business administration from Harvard

Business School.       He was a certified public accountant (C.P.A.),

but he allowed his C.P.A. license to lapse.       He worked as a

computer programmer for 20 or more years before trial.

       On November 5, 2004, the Vanguard Group (Vanguard)

distributed $50,000 to Mr. Woodard from his Vanguard contributory

IRA.       On November 22, 2004, Vanguard distributed $50,000 to him

from his Vanguard rollover IRA.       On December 14, 2004, Vanguard

converted $50,000 from the contributory IRA to a Roth IRA.         On a

Form 1099-R, Distributions From Pensions, Annuities, Retirement

or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.,

Vanguard reported two $50,000 distributions from the contributory

IRA and one $50,000 distribution from the rollover IRA.

       Vanguard sent distributions totaling $100,000 to Mr.

Woodard.3      Mr. Woodard deposited that amount into his personal

checking account in 2004.

       In February 2005 Mr. Woodard wired funds to Amanda M. Mahn

pursuant to demand notes and statutory mortgage documents

executed on February 4 and 11, 2005, by Ms. Mahn as debtor and

Hunter Financial, LLC, as lender.       Mr. Woodard promptly recorded




       3
       The $50,000 converted from the contributory IRA to a Roth
IRA apparently remained invested in a Roth IRA at Vanguard.
                                 - 4 -

the mortgages in Minnesota.   The loan documents specified

interest at 16 percent.

     At the time of recordation, a prior mortgage on the same

property funded in January 2005 by Lake State Federal Credit

Union (Lake State) had not been recorded.    On September 13, 2005,

Mr. Woodard filed articles of organization to establish Hunter

Financial, LLC (hereafter Hunter Financial), as a business entity

registered with the State of Minnesota secretary of state.

     After Lake State failed to receive mortgage payments from

August through November 2005, it discovered that its mortgage had

not been recorded, that the warranty deed on the property had

been altered to add Ms. Mahn’s name, and that the altered

warranty deed had been used to obtain mortgage financing from

Hunter Financial.   On December 5, 2005, Lake State commenced a

foreclosure action against the property, notifying all

lienholders and joining them as defendants.

     The Minnesota district court granted summary judgment to

Lake State against Hunter Financial, finding the alleged mortgage

between Hunter Financial and Ms. Mahn void.    In an unpublished

opinion the Minnesota Court of Appeals affirmed the summary

judgment, stating that a mortgage must be delivered to the

mortgagee to be valid and that a nonexistent legal entity cannot

accept delivery of a mortgage.    Accordingly, because Hunter

Financial was not registered until September 2005, it could not
                                 - 5 -

have taken delivery in February 2005; thus, the mortgage granting

it a property interest in February 2005 was void.4   Lake State

Fed. Credit Union v. Tretsven, No. A07-1542 (Minn. Ct. App. July

15, 2008) (slip op. at 6).

     Trudi Woodard was not involved with Mr. Woodard’s finances

and was not aware that he had taken any distributions from his

IRAs in 2004.   Mr. Woodard prepared the couple’s joint Federal

income tax return for 2004, but he did not report any of the

$150,000 in IRA distributions.

     Respondent issued a notice of deficiency determining a

$27,606 deficiency and a $5,521 accuracy-related penalty, both

resulting from the $150,000 in unreported distributions.5   As

indicated, supra note 2, Mr. Woodard concedes that the

distributions are taxable income in 2004, but he challenges the

section 6662(a) accuracy-related penalty.6


     4
       Mr. Woodard alleges that Ms. Mahn secured other mortgages
on the same property, and the record reflects that Ms. Mahn was
convicted of bank fraud in 2006.
     5
       Respondent did not determine an additional tax under sec.
72(t). Although respondent’s counsel indicated that the
additional tax should apply to the $100,000 Vanguard distributed
to Mr. Woodard, she did not assert an additional deficiency. See
sec. 6214(a).
     6
       Mr. Woodard sought to but ultimately did not file a motion
to allow him to claim a deduction for a theft loss for the amount
he wired to Ms. Mahn to fund the private mortgages. Mr. Woodard
did not fund these loans until 2005. Thus, a theft or bad debt
could not have occurred until 2005 or later, and a deduction
therefore would not be allowable for taxable year 2004. Only
                                                   (continued...)
                               - 6 -

                            Discussion

     Section 6662(a) and (b)(1) and (2) imposes a penalty equal

to 20 percent of any underpayment of tax that is attributable to

negligence or disregard of rules or regulations or to a

substantial understatement of income tax.   The term “negligence”

includes any failure to make a reasonable attempt to comply with

the provisions of the internal revenue laws.     Sec. 6662(c); sec.

1.6662-3(b)(1), Income Tax Regs.   The term “disregard” includes

any careless, reckless, or intentional disregard.     Sec. 6662(c);

sec. 1.6662-3(b)(2), Income Tax Regs.

     An understatement of income tax is “substantial” if it

exceeds the greater of 10 percent of the tax required to be shown

on the return or $5,000.   Sec. 6662(d)(1)(A).   An

“understatement” is defined as the excess of the tax required to

be shown on the return over the tax actually shown on the return.

Sec. 6662(d)(2)(A).

     By virtue of section 7491(c), respondent has the burden of

production with respect to the accuracy-related penalty.     To meet

this burden, respondent must produce sufficient evidence

indicating that it is appropriate to impose the penalty.     See

Higbee v. Commissioner, 116 T.C. 438, 446 (2001).     Once



     6
      (...continued)
taxable year 2004 is before the Court. Accordingly, Mr.
Woodard’s loss after taxable year 2004 does not affect the issue
to be decided herein.
                                  - 7 -

respondent meets this burden of production, Mr. Woodard must come

forward with persuasive evidence that respondent’s determination

is incorrect.     See Rule 142(a); Higbee v. Commissioner, supra at

446.

       Respondent satisfied his burden of production under section

7491(c) because the record shows that petitioners substantially

understated their income tax for the year in issue.     See sec.

6662(d)(1)(A)(ii); Higbee v. Commissioner, supra at 446.

       Section 6664 provides a defense to the penalty if a taxpayer

establishes that there was reasonable cause for the underpayment

and that he acted in good faith.     Sec. 6664(c)(1); Neonatology

Associates P.A. v. Commissioner, 115 T.C. 43, 98 (2000), affd.

299 F.3d 221 (3d Cir. 2002); sec. 1.6664-4(a), Income Tax Regs.

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 the pertinent facts and circumstances.     Sec.

1.6664-4(b)(1), Income Tax Regs.     Generally, the most important

factor is the extent of the taxpayer’s effort to assess the

proper tax liability, including reliance on the advice of a tax

return preparer.     Id.   An honest misunderstanding of fact or law

that is reasonable considering the taxpayer’s education,

experience, and knowledge may indicate reasonable cause and good

faith.    Id.   Mr. Woodard bears the burden of proving that he

acted with reasonable cause and in good faith.      See sec.
                                - 8 -

6664(c)(1); see also Higbee v. Commissioner, supra at 446; sec.

1.6664-4(a), Income Tax Regs.

     Mr. Woodard explained that he thought he had a self-directed

IRA and that he intended to reinvest the $100,000 in private

mortgages.   He searched the Internet for information about self-

directed IRAs, and he followed advice he found on line.    He

deposited the $100,000 into his personal checking account and

wired the funds from that account to Ms. Mahn as mortgagor.

     As indicated supra note 2, Mr. Woodard agrees that receiving

the distribution from Vanguard and depositing the money into his

personal checking account in November 2004, then paying the funds

from that account to the mortgagor in February 2005 did not

effect a rollover of the retirement assets that would qualify for

continuing deferral of taxation under section 408(d)(3).    He did

not address the Roth IRA conversion at trial, and he concedes

that he is liable for income tax on the entire $150,000

distributed by Vanguard.   However, he argues that he intended

that the $100,000 remain in a self-directed IRA, that this is a

complicated area of the law, that he never intended to defraud

the Government, that he reaped no personal benefit from the money

(all of which he lost when it was stolen by Ms. Mahn, who was

then incarcerated for fraud), and finally that he should not be

liable for the accuracy-related penalty because he followed

Internet instructions in managing his self-directed IRA.
                                - 9 -

     Mr. Woodard makes no argument relative to his having

reasonable cause and acting in good faith in not reporting income

from his $50,000 conversion from a traditional IRA to a Roth IRA.

Accordingly, we sustain the accuracy-related penalty as to the

portion of the underpayment attributable to this unreported

income.

     Mr. Woodard asks the Court to accept that his research on

the Internet using the Google search engine provided him with

reasonable cause for the position he took when filing his 2004

Federal income tax return; to wit, not reporting IRA

distributions he commingled with other funds by depositing the

distributions into his checking account because he later invested

those funds in private mortgages.   Mr. Woodard has not provided

the Court with any information about the sources of the

information he found on the Internet.

     Good-faith reliance on advice from an independent, competent

professional as to the tax treatment of an item may meet the

reasonable cause requirement.    Neonatology Associates, P.A. v.

Commissioner, supra at 98; sec. 1.6664-4(b), Income Tax Regs.      A

taxpayer must act with ordinary business care and prudence to

claim reasonable cause.   Neonatology Associates, P.A. v.

Commissioner, supra at 98.

     Mr. Woodard claims that he relied on information found on

unspecified Web sites written by unidentified individuals or
                              - 10 -

organizations.   From the record, it is not clear that he

questioned the provenance or accuracy of the information he found

through the Google search engine.7     Without knowing the sources

of the information, it is impossible for the Court to determine

that those sources were competent to provide tax advice.

Accordingly, we cannot conclude that Mr. Woodard exercised

ordinary business care and prudence in selecting and relying upon

the information he found on line.     As a result, we find that he

has not shown reasonable cause for failing to report the

distributions from his IRA on the 2004 Federal income tax return.

Not having found reasonable cause, we need not consider whether

Mr. Woodard acted in good faith.     See sec. 6664(c)(1).

     Respondent’s determinations including the accuracy-related

penalty will be sustained as to Mr. Woodard.     The parties agree

that Trudi Woodard is entitled to complete relief from liability

for taxable year 2004, and our decision will reflect their

agreement.


                                           An appropriate order and

                                      decision will be entered.



     7
       We recognize that petitioner had not worked as an
accountant for years before filing the 2004 return, but his
accounting degree, M.B.A., and C.P.A. training, no matter how
stale, undoubtedly taught him what sources could be relied upon
as definitive; such as, for example, the Internal Revenue Code
and the income tax regulations, both of which are readily
available on the Internet.
