                         T.C. Memo. 2008-177



                       UNITED STATES TAX COURT



                   KIM J. REID, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2550-07.               Filed July 29, 2008.



     Kim J. Reid, pro se.

     Richard J. Hassebrock, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined a deficiency in, and

an accuracy-related penalty under section 6662(a)1 on, peti-

tioner’s Federal income tax (tax) for her taxable year 2004 of


     1
      All section references are to the Internal Revenue Code
(Code) for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 2 -

$2,131 and $426.20, respectively.

      The issues for decision are:2

      (1) Are the payments totaling $9,000 that petitioner’s

former husband made to her during 2004 includible in her gross

income under section 71(a)?    We hold that they are.

      (2) Is petitioner liable for the year at issue for the

accuracy-related penalty under section 6662(a)?    We hold that she

is.

                         FINDINGS OF FACT

      Petitioner resided in Ohio at the time she filed the peti-

tion in this case.

      On September 2, 2003, the Domestic Relations Court of

Franklin County, Ohio, entered a divorce decree (petitioner’s

divorce decree) that finalized the terms of the divorce settle-

ment between petitioner and James R. Reid (Mr. Reid).   Pursuant

to the terms of petitioner’s divorce decree, Mr. Reid was ordered

to pay to petitioner during 2004 $750 a month in spousal support

(monthly payments at issue).    During 2004, Mr. Reid made monthly

payments totaling $9,000 in spousal support to petitioner.

      On April 15, 2005, petitioner electronically filed Form

1040A, U.S. Individual Income Tax Return, for her taxable year


      2
      There is also an issue relating to the earned income credit
that petitioner claimed in her tax return for 2004. Resolution
of that issue flows automatically from our resolution of the
issue under sec. 71(a).
                                 - 3 -

2004 (2004 return).   Petitioner did not include in income in that

return the monthly payments at issue.     Petitioner prepared and

filed her 2004 return without consulting any tax professionals.

     Respondent issued to petitioner a notice of deficiency for

her taxable year 2004 (2004 notice).      In that notice, respondent

determined that the monthly payments at issue totaling $9,000 are

includible in petitioner’s gross income as alimony or separate

maintenance payments.     In the 2004 notice, respondent further

determined that petitioner is liable for the accuracy-related

penalty under section 6662(a).3

                                OPINION

     Petitioner bears the burden of proving that respondent’s

determinations in the 2004 notice are erroneous.4     See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Monthly Payments at Issue

     It is petitioner’s position that the monthly payments at

issue are not includible in her gross income.     In support of that

position, petitioner claimed at trial that she believed that the

term “alimony” related to payments made by a former spouse for

child support and that the term “spousal support” related to

payments made by a former spouse to a spouse that are not


     3
      See supra note 2.
     4
      Petitioner does not claim that the burden of proof shifts
to respondent under sec. 7491(a).
                               - 4 -

includible in gross income.5   On the record before us, we reject

petitioner’s position.

     Section 71(b)(1) defines the term “alimony or separate

maintenance payment” to mean any cash payment if--

          (A) such payment is received by (or on behalf of)
     a spouse under a divorce or separation instrument,

          (B) the divorce or separation instrument does not
     designate such payment as a payment which is not
     includible in gross income under this section and not
     allowable as a deduction under section 215,

          (C) in the case of an individual legally separated
     from his spouse under a decree of divorce or of sepa-
     rate maintenance, the payee spouse and the payor spouse
     are not members of the same household at the time such
     payment is made, and

          (D) there is no liability to make any such payment
     for any period after the death of the payee spouse and
     there is no liability to make any payment (in cash or
     property) as a substitute for such payments after the
     death of the payee spouse.

     Petitioner stipulated that during 2004 she received each of

the monthly payments at issue pursuant to the terms of peti-

tioner’s divorce decree.   See sec. 71(b)(1)(A).

     Petitioner’s divorce decree is not part of the record.

Nothing in the record shows whether that divorce decree desig-

nated each of the monthly payments at issue as a payment that is

not includible in gross income under section 71(a) and not

allowable as a deduction under section 215.   See sec.


     5
      Although the Court directed the parties to file briefs,
petitioner failed to do so.
                               - 5 -

71(b)(1)(B).   On the record before us, we find that petitioner

has failed to establish that petitioner’s divorce decree desig-

nated each of the monthly payments at issue as a payment that is

not includible in gross income under section 71(a) and not

allowable as a deduction under section 215.

     Nothing in the record shows whether petitioner and Mr. Reid

were members of the same household at the time Mr. Reid made each

of the monthly payments at issue.   See sec. 71(b)(1)(C).   On the

record before us, we find that petitioner has failed to establish

that she and Mr. Reid were members of the same household at the

time Mr. Reid made each of the monthly payments at issue.

     Nothing in the record shows whether petitioner’s divorce

decree provided that Mr. Reid was obligated to make any spousal

support payments after petitioner died and whether Mr. Reid had

any obligation to make any payments as a substitute for spousal

support payments after petitioner died.   See sec. 71(b)(1)(D).

Under Ohio law, any award of spousal support payments is to

terminate automatically upon the death of either party unless the

order containing the award expressly provides otherwise.    Ohio

Rev. Code Ann. sec. 3105.18(B) (West 2008).   On the record before

us, we find that petitioner has failed to establish that peti-

tioner’s divorce decree provided otherwise.

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-
                                  - 6 -

lishing that the monthly payments at issue totaling $9,000 are

not includible in her gross income under section 71(a).

Accuracy-Related Penalty

     Respondent determined that petitioner is liable for the year

at issue for the accuracy-related penalty under section 6662(a)

because of negligence or disregard of rules or regulations under

section 6662(b)(1).6

     Section 6662(a) imposes an accuracy-related penalty equal to

20 percent of the underpayment to which section 6662 applies.

Section 6662 applies to the portion of any underpayment which is

attributable to, inter alia, negligence or disregard of rules or

regulations.   Sec. 6662(b)(1).

     The term “negligence” in section 6662(b)(1) includes any

failure to make a reasonable attempt to comply with the Code.

See sec. 6662(c).   Negligence has also been defined as a failure

to do what a reasonable person would do under the circumstances.

See Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th Cir. 1992),

affg. T.C. Memo. 1991-179; Antonides v. Commissioner, 91 T.C.

686, 699 (1988), affd. 893 F.2d 656 (4th Cir. 1990).   The term




     6
      On brief, respondent argues that petitioner also is liable
for the accuracy-related penalty under sec. 6662(a) because of a
substantial understatement of tax under sec. 6662(b)(2). In view
of our findings and holding under sec. 6662(a) and (b)(1), we
need not address respondent’s argument under sec. 6662(a) and
(b)(2).
                                - 7 -

“disregard” includes any careless, reckless, or intentional

disregard.   Sec. 6662(c).

     The accuracy-related penalty under section 6662(a) does not

apply to any portion of an underpayment if it is shown that there

was reasonable cause for, and that the taxpayer acted in good

faith with respect to, such portion.    Sec. 6664(c)(1).   The

determination of whether the taxpayer acted with reasonable cause

and in good faith depends on the pertinent facts and circum-

stances, including the taxpayer’s effort to assess the taxpayer’s

proper tax liability, the knowledge and experience of the tax-

payer, and the reliance on the advice of a professional, such as

an accountant.   Sec. 1.6664-4(b)(1), Income Tax Regs.

     Respondent has the burden of production under section

7491(c) with respect to the accuracy-related penalty under

section 6662.    To meet that burden, respondent must come forward

with sufficient evidence showing that it is appropriate to impose

the accuracy-related penalty.    Higbee v. Commissioner, 116 T.C.

438, 446 (2001).   Although respondent bears the burden of produc-

tion with respect to the accuracy-related penalty that respondent

determined for petitioner’s taxable year 2004, respondent “need

not introduce evidence regarding reasonable cause, substantial

authority, or similar provisions. * * * the taxpayer bears the

burden of proof with regard to those issues.”    Id.
                               - 8 -

     At trial, petitioner claimed that she did not include the

monthly payments at issue in income in her 2004 return because

she believed that the term “alimony” related to payments made by

a former spouse for child support and that the term “spousal

support” related to payments made by a former spouse to a spouse

that are not includible in income.     In response to a question on

cross-examination as to why petitioner held those beliefs, she

responded:   “In the dictionary, and just, you know, what it

explained to me.”

     On the record before us, we find that petitioner made no

reasonable attempt to comply with the requirements of the Code

with respect to the monthly payments at issue and that she failed

to do what a reasonable person would do under the circumstances.

We have found no dictionary definition of the term “alimony” that

supports petitioner’s testimony.7    Nor have we found anything in

a dictionary that suggests the term “spousal support” relates to

payments made by a former spouse to a spouse that are not

includible in income.

     On the record before us, we find that respondent has carried

respondent’s burden of production under section 7491(c).    On that

record, we further find that petitioner has failed to carry her


     7
      The term “alimony” is defined in Merriam-Webster’s Colle-
giate Dictionary (11th ed. 2007) to mean “1 : an allowance made
to one spouse by the other for support pending or after legal
separation or divorce 2 : the means of living: MAINTENANCE”.
                                 - 9 -

burden of showing that the underpayment for her taxable year 2004

was not attributable to negligence or disregard of rules or

regulations.   On the record before us, we also find that peti-

tioner has failed to carry her burden of showing that there was

reasonable cause for, and that she acted in good faith with

respect to, that underpayment.

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-

lishing that she is not liable for the year at issue for the

accuracy-related penalty under section 6662(a).

     We have considered all of the contentions and arguments of

petitioner that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.
