(a) Imposition of penalty
If this section applies to any portion of an underpayment of tax required to be shown on a return, there shall be added to the tax an amount equal to 20 percent of the portion of the underpayment to which this section applies.
(b) Portion of underpayment to which section applies This section shall apply to the portion of any underpayment which is attributable to 1 or more of the following:
(1) Negligence or disregard of rules or regulations.
(2) Any substantial understatement of income tax.
(3) Any substantial valuation misstatement under chapter 1.
(4) Any substantial overstatement of pension liabilities.
(5) Any substantial estate or gift tax valuation understatement.
This section shall not apply to any portion of an underpayment on which a penalty is imposed under section 6663. Except as provided in paragraph (1) or (2)(B) of section 6662A (e), this section shall not apply to the portion of any underpayment which is attributable to a reportable transaction understatement on which a penalty is imposed under section 6662A.
(c) Negligence
For purposes of this section, the term negligence includes any failure to make a reasonable attempt to comply with the provisions of this title, and the term disregard includes any careless, reckless, or intentional disregard.
(d) Substantial understatement of income tax
(1) Substantial understatement
(A) In general For purposes of this section, there is a substantial understatement of income tax for any taxable year if the amount of the understatement for the taxable year exceeds the greater of
(i) 10 percent of the tax required to be shown on the return for the taxable year, or
(ii) $5,000.
(B) Special rule for corporations In the case of a corporation other than an S corporation or a personal holding company (as defined in section
542), there is a substantial understatement of income tax for any taxable year if the amount of the understatement for the taxable year exceeds the lesser of
(i) 10 percent of the tax required to be shown on the return for the taxable year (or, if greater, $10,000), or
(ii) $10,000,000.
(2) Understatement
(A) In general For purposes of paragraph (1), the term understatement means the excess of
(i) the amount of the tax required to be shown on the return for the taxable year, over
(ii) the amount of the tax imposed which is shown on the return, reduced by any rebate (within the meaning of section
6211 (b)(2)).
The excess under the preceding sentence shall be determined without regard to items to which section 6662A applies.
(B) Reduction for understatement due to position of taxpayer or disclosed item The amount of the understatement under subparagraph (A) shall be reduced by that portion of the understatement which is attributable to
(i) the tax treatment of any item by the taxpayer if there is or was substantial authority for such treatment, or
(ii) any item if
(I) the relevant facts affecting the items tax treatment are adequately disclosed in the return or in a statement attached to the return, and
(II) there is a reasonable basis for the tax treatment of such item by the taxpayer.
For purposes of clause (ii)(II), in no event shall a corporation be treated as having a reasonable basis for its tax treatment of an item attributable to a multiple-party financing transaction if such treatment does not clearly reflect the income of the corporation.
(C) Reduction not to apply to tax shelters
(i) In general Subparagraph (B) shall not apply to any item attributable to a tax shelter.
(ii) Tax shelter For purposes of clause (i), the term tax shelter means
(I) a partnership or other entity,
(II) any investment plan or arrangement, or
(III) any other plan or arrangement,
if a significant purpose of such partnership, entity, plan, or arrangement is the avoidance or evasion of Federal income tax.
(3) Secretarial list The Secretary may prescribe a list of positions which the Secretary believes do not meet 1 or more of the standards specified in paragraph (2)(B)(i), section
6664 (d)(2), and section
6694 (a)(1). Such list (and any revisions thereof) shall be published in the Federal Register or the Internal Revenue Bulletin.
(e) Substantial valuation misstatement under chapter 1
(1) In general For purposes of this section, there is a substantial valuation misstatement under chapter 1 if
(A) the value of any property (or the adjusted basis of any property) claimed on any return of tax imposed by chapter 1 is 150 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be), or
(B)
(i) the price for any property or services (or for the use of property) claimed on any such return in connection with any transaction between persons described in section
482 is 200 percent or more (or 50 percent or less) of the amount determined under section
482 to be the correct amount of such price, or
(ii) the net section
482 transfer price adjustment for the taxable year exceeds the lesser of $5,000,000 or 10 percent of the taxpayers gross receipts.
(2) Limitation No penalty shall be imposed by reason of subsection (b)(3) unless the portion of the underpayment for the taxable year attributable to substantial valuation misstatements under chapter 1 exceeds $5,000 ($10,000 in the case of a corporation other than an S corporation or a personal holding company (as defined in section
542)).
(3) Net section 482 transfer price adjustment For purposes of this subsection
(A) In general The term net section
482 transfer price adjustment means, with respect to any taxable year, the net increase in taxable income for the taxable year (determined without regard to any amount carried to such taxable year from another taxable year) resulting from adjustments under section
482 in the price for any property or services (or for the use of property).
(B) Certain adjustments excluded in determining threshold For purposes of determining whether the threshold requirements of paragraph (1)(B)(ii) are met, the following shall be excluded:
(i) Any portion of the net increase in taxable income referred to in subparagraph (A) which is attributable to any redetermination of a price if
(I) it is established that the taxpayer determined such price in accordance with a specific pricing method set forth in the regulations prescribed under section
482 and that the taxpayers use of such method was reasonable,
(II) the taxpayer has documentation (which was in existence as of the time of filing the return) which sets forth the determination of such price in accordance with such a method and which establishes that the use of such method was reasonable, and
(III) the taxpayer provides such documentation to the Secretary within 30 days of a request for such documentation.
(ii) Any portion of the net increase in taxable income referred to in subparagraph (A) which is attributable to a redetermination of price where such price was not determined in accordance with such a specific pricing method if
(I) the taxpayer establishes that none of such pricing methods was likely to result in a price that would clearly reflect income, the taxpayer used another pricing method to determine such price, and such other pricing method was likely to result in a price that would clearly reflect income,
(II) the taxpayer has documentation (which was in existence as of the time of filing the return) which sets forth the determination of such price in accordance with such other method and which establishes that the requirements of subclause (I) were satisfied, and
(III) the taxpayer provides such documentation to the Secretary within 30 days of request for such documentation.
(iii) Any portion of such net increase which is attributable to any transaction solely between foreign corporations unless, in the case of any such corporations, the treatment of such transaction affects the determination of income from sources within the United States or taxable income effectively connected with the conduct of a trade or business within the United States.
(C) Special rule If the regular tax (as defined in section
55 (c)) imposed by chapter 1 on the taxpayer is determined by reference to an amount other than taxable income, such amount shall be treated as the taxable income of such taxpayer for purposes of this paragraph.
(D) Coordination with reasonable cause exception For purposes of section
6664 (c) the taxpayer shall not be treated as having reasonable cause for any portion of an underpayment attributable to a net section
482 transfer price adjustment unless such taxpayer meets the requirements of clause (i), (ii), or (iii) of subparagraph (B) with respect to such portion.
(f) Substantial overstatement of pension liabilities
(1) In general For purposes of this section, there is a substantial overstatement of pension liabilities if the actuarial determination of the liabilities taken into account for purposes of computing the deduction under paragraph (1) or (2) of section
404 (a) is 200 percent or more of the amount determined to be the correct amount of such liabilities.
(2) Limitation
No penalty shall be imposed by reason of subsection (b)(4) unless the portion of the underpayment for the taxable year attributable to substantial overstatements of pension liabilities exceeds $1,000.
(g) Substantial estate or gift tax valuation understatement
(1) In general
For purposes of this section, there is a substantial estate or gift tax valuation understatement if the value of any property claimed on any return of tax imposed by subtitle B is 65 percent or less of the amount determined to be the correct amount of such valuation.
(2) Limitation
No penalty shall be imposed by reason of subsection (b)(5) unless the portion of the underpayment attributable to substantial estate or gift tax valuation understatements for the taxable period (or, in the case of the tax imposed by chapter 11, with respect to the estate of the decedent) exceeds $5,000.
(h) Increase in penalty in case of gross valuation misstatements
(1) In general
To the extent that a portion of the underpayment to which this section applies is attributable to one or more gross valuation misstatements, subsection (a) shall be applied with respect to such portion by substituting 40 percent for 20 percent.
(2) Gross valuation misstatements The term gross valuation misstatements means
(A) any substantial valuation misstatement under chapter 1 as determined under subsection (e) by substituting
(i) in paragraph (1)(A), 200 percent for 150 percent,
(ii) in paragraph (1)(B)(i)
(I) 400 percent for 200 percent, and
(II) 25 percent for 50 percent, and
(iii) in paragraph (1)(B)(ii)
(I) $20,000,000 for $5,000,000, and
(II) 20 percent for 10 percent.
(B) any substantial overstatement of pension liabilities as determined under subsection (f) by substituting 400 percent for 200 percent, and
(C) any substantial estate or gift tax valuation understatement as determined under subsection (g) by substituting 40 percent for 65 percent.
