VALDEZ v. COMMISSIONER

COUVILLION, Special Trial Judge: This case was heard pursuant to section 7463 of the Internal Revenue Code in effect at the time the petition was filed.¹ The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority.

Respondent determined deficiencies of $ 1,432, $ 1,372, and $ 1,102 in petitioners' Federal income taxes, respectively, for 1997, 1998, and 1999 and corresponding penalties under section 6662(a) in the amounts of $ 286, $ 274, and $ 220.

Some of the facts were stipulated, and those facts, with the annexed exhibits, are so found and are incorporated*66 herein by reference. At the time the petition was filed, petitioners' legal residence was Albuquerque, New Mexico.

For each of the years in question, petitioners claimed itemized deductions on a Schedule A, Itemized Deductions. In the notice of deficiency, respondent disallowed all the amounts claimed as deductions for each of the years at issue for charitable contributions and miscellaneous itemized deductions, the latter consisting of unreimbursed employee business expenses. Other itemized deductions claimed by petitioners, although substantiated, were less than the allowable standard deduction under section 63(c); consequently, respondent allowed petitioners the standard deduction for each of the 3 years at issue.

In the stipulation, petitioners conceded the deficiencies, challenging only the penalties under section 6662(a). In addition to considering that issue, the Court also considers the applicability of section 6673(a) to the facts of this case.

Petitioner Eugene I. Valdez (petitioner) was employed for the 3 years at issue as an architectural technician for a corporation that subcontracted its employees to the Intel Corp. at Albuquerque, New Mexico. Mrs. Valdez was not employed*67 during 1997 and 1998 and worked briefly for the Santa Fe Star Casino during 1999.

Prior to the years at issue, petitioners engaged the services of a certified public accountant, or a nationally recognized tax preparation service, for the preparation of their Federal income tax returns. For the years at issue, one of petitioner's coworkers recommended that petitioners employ a return preparer, Robin Beltran, because "this man can get you more money back on your taxes than what you've been getting."²

When petitioners met with Mr. Beltran, for each of the 3 years they presented to him substantiation for itemized deductions for home mortgage interest and real estate taxes. They presented no documentation to substantiate any other itemized deductions. Nonetheless, the*68 returns for each year claimed the following itemized deductions (in addition to the two aforementioned expenses for home mortgage interest and real estate taxes):

                   1997    1998   1999

                  ______   ______  ______

Charitable contributions       $ 3,957   $ 3,030 $ 3,736

Unreimbursed employee expenses

 (before the sec. 67(a) limitation) 6,577    7,710   4,775

[9] Petitioners agree that they did not incur any unreimbursed employee expenses during the 3 years at issue and had no intention of claiming such expenses as deductions on their returns. Even though petitioners made some charitable contributions during the years at issue, they maintained no records of their contributions and, likewise, had no intent to claim such contributions as deductions. Petitioner's only explanation for the inclusion of such items on their returns was that the amounts on the returns simply "came out of his [Mr. Beltran's] head."

Petitioners never examined the returns prepared by Mr. Beltran except for the amounts claimed on the returns as refunds for overpayments.*69 Mr. Beltran advised petitioners to ignore any correspondence they received from the Internal Revenue Service questioning their returns, and petitioners followed that advice.

Petitioners contend they should be absolved of liability for the section 6662(a) penalties because they relied on the representations of their return preparer.

Section 6662(a) provides for an accuracy-related penalty equal to 20 percent of any portion of an underpayment of tax required to be shown on the return that is attributable to the taxpayer's negligence or disregard of rules or regulations. Sec. 6662(a) and (b)(1). Negligence consists of any failure to make a reasonable attempt to comply with the provisions of the Internal Revenue Code and disregard consists of any careless, reckless, or intentional disregard. Sec. 6662(c). The courts have refined the Code definition of negligence as a lack of due care or failure to do what a reasonable and prudent person would do under similar circumstances. Allen v. Commissioner, 925 F.2d 348, 353 (9th Cir. 1991), affg. 92 T.C. 1 (1989). Section 1.6662-3(b)(1), Income Tax Regs., provides that "Negligence is strongly*70 indicated where * * * a taxpayer fails to make a reasonable attempt to ascertain the correctness of a deduction * * * on a return which would seem to a reasonable and prudent person to be 'too good to be true' under the circumstances."

An exception applies when the taxpayer demonstrates (1) there was reasonable cause for the underpayment, and (2) the taxpayer acted in good faith with respect to the underpayment. Sec. 6664(c). Whether the taxpayer acted with reasonable cause and in good faith is determined by the relevant facts and circumstances. The most important factor is the extent of the taxpayer's effort to assess the proper tax liability. Stubblefield v. Commissioner, T.C. Memo 1996-537; sec. 1.6664-4(b)(1), Income Tax Regs. Under section 1.6664-4(b)(1), "Circumstances that may indicate reasonable cause and good faith include an honest misunderstanding of fact or law that is reasonable in light of all the facts and circumstances, including the experience, knowledge and education of the taxpayer." Moreover, a taxpayer is generally charged with knowledge of the law. Niedringhaus v. Commissioner, 99 T.C. 202, 222 (1992). Although*71 a taxpayer is not subject to the penalty for negligence where the taxpayer makes honest mistakes in complex matters, the taxpayer must take reasonable steps to determine the law and to comply with it. Id.

Under certain circumstances, a taxpayer may avoid the accuracy-related penalty for negligence where the taxpayer reasonably relied on the advice of a competent professional. Sec. 1.6664- 4(b)(1), Income Tax Regs.; sec. 6664(c); Freytag v. Commissioner, 89 T.C. 849, 888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd. 501 U.S. 868, 115 L. Ed. 2d 764, 111 S. Ct. 2631 (1991). However, reliance on a professional adviser, standing alone, is not an absolute defense to negligence; it is only one factor to be considered. In order for reliance on a professional adviser to relieve a taxpayer from the negligence penalty, the taxpayer must establish that the professional adviser on whom he or she relied had the expertise and knowledge of the relevant facts to provide informed advice on the subject matter. Freytag v. Commissioner, supra at 888.

Petitioners made no effort to ascertain the professional background and qualifications of their return preparer, Mr. Beltran. They*72 failed to examine the returns prepared by Mr. Beltran, except to ascertain the amount of the refunds they could expect. Petitioners did not look beyond that, as they were obviously interested more in the recommendation they had received on Mr. Beltran that "this man can get you more money back on your taxes than what you've been getting." The Court is satisfied that petitioners knew they could only claim deductions that could be substantiated, and, when their returns reflected refunds considerably higher than what they normally would have received, their failure to examine the returns or to have someone examine the returns for them to ascertain the reasons for such overpayments, constitutes negligence or disregard of rules or regulations. Petitioners consciously failed to examine the returns because they knew that the returns must have contained information that was false. With the obvious reservations petitioners had or should have had, they, nevertheless, failed to ascertain from tax professionals whether their returns were correctly prepared. These facts demonstrate to the Court that petitioners made no reasonable effort to ascertain their correct tax liabilities for the years at*73 issue. Stubblefield v. Commissioner, T.C. Memo 1996-537. On this record, the Court sustains respondent on the section 6662(a) accuracy-related penalties for the 3 years at issue.

Section 6673(a) authorizes the Court to require a taxpayer to pay to the United States a penalty not exceeding $ 25,000 when, in the Court's judgment, proceedings have been instituted or maintained by the taxpayer primarily for delay or where the taxpayer's position in the proceeding is frivolous or groundless. Although petitioners conceded the deficiencies and challenged only the penalties under section 6662(a), the Court considers petitioners' claim that they should not be liable for the penalties to be frivolous and groundless. Petitioners knew that a substantial portion of the itemized deductions at issue was false and could not be sustained. Other circumstances noted above need not be repeated here.

The function of this Court is to provide a forum to decide issues relating to liability for Federal taxes. At trial, petitioners realized that they had no case with respect to the deficiencies but chose to continue to challenge the imposition of the penalties under section 6662(a). Any reasonable and prudent*74 person, under the facts presented to the Court, should have known that the claimed deductions could not be sustained, and petitioners knew that. We do not and should not countenance the use of this Court as a vehicle for disgruntled litigants to proclaim the wrongdoing of another, their return preparer, as a basis for relief from penalties that were determined by respondent on facts that clearly are not sustainable. Golub v. Commissioner, T.C. Memo 1999-288. Petitioners, therefore, have interfered with the Court's function to the detriment of other parties having cases with legitimate issues for the Court to consider. Petitioners have caused needless expense and wasted resources, not only for the Court, but for its personnel, respondent, and respondent's counsel. Under these circumstances, the penalty under section 6673 is warranted, and petitioners will be ordered to pay a penalty of $ 500 to the United States under section 6673(a).

Reviewed and adopted as the report of the Small Tax Case Division.

Decision will be entered for respondent.