26 USC 6662 - Imposition of accuracy-related penalty on underpayments

U.S Code last checked for updates: May 13, 2024

§ 6662.

Imposition of accuracy-related penalty on underpayments

(a)

Imposition of penalty

(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.

(6)

Any disallowance of claimed tax benefits by reason of a transaction lacking economic substance (within the meaning of section 7701(o)) or failing to meet the requirements of any similar rule of law.

(7)

Any undisclosed foreign financial asset understatement.

(8)

Any inconsistent estate basis.

(9)

Any overstatement of the deduction provided in section 170(p).

(10)

Any disallowance of a deduction by reason of section 170(h)(7).

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

(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.

(C)

Special rule for taxpayers claiming section 199A deduction

(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 item’s 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

(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

(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 taxpayer’s gross receipts.

(2)

Limitation

(3)

Net section 482 transfer price adjustment

For purposes of this subsection—

(A)

In general

(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 taxpayer’s 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

(D)

Coordination with reasonable cause exception

(f)

Substantial overstatement of pension liabilities

(1)

In general

(2)

Limitation

(g)

Substantial estate or gift tax valuation understatement

(1)

In general

(2)

Limitation

(h)

Increase in penalty in case of gross valuation misstatements

(1)

In general

(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”,

(C)

any substantial estate or gift tax valuation understatement as determined under subsection (g) by substituting “40 percent” for “65 percent”, and

(D)

any disallowance of a deduction described in subsection (b)(10).

(i)

Increase in penalty in case of nondisclosed noneconomic substance transactions

(1)

In general

(2)

Nondisclosed noneconomic substance transactions

(3)

Special rule for amended returns

(j)

Undisclosed foreign financial asset understatement

(1)

In general

(2)

Undisclosed foreign financial asset

(3)

Increase in penalty for undisclosed foreign financial asset understatements

(k)

Inconsistent estate basis reporting

(l)

Increase in penalty in case of overstatement of qualified charitable contributions

(Added Pub. L. 101–239, title VII, § 7721(a), Dec. 19, 1989, 103 Stat. 2395; amended Pub. L. 101–508, title XI, § 11312(a), (b), Nov. 5, 1990, 104 Stat. 1388–454, 1388–455; Pub. L. 103–66, title XIII, §§ 13236(a)–(d), 13251(a), Aug. 10, 1993, 107 Stat. 505, 506, 531; Pub. L. 103–465, title VII, § 744(a), (b), Dec. 8, 1994, 108 Stat. 5011; Pub. L. 105–34, title X, § 1028(c), Aug. 5, 1997, 111 Stat. 928; Pub. L. 108–357, title VIII, §§ 812(b), (d), (e)(1), 819(a), (b), Oct. 22, 2004, 118 Stat. 1578, 1580, 1584; Pub. L. 109–135, title IV, §§ 403(x)(1), 412(aaa), Dec. 21, 2005, 119 Stat. 2629, 2641; Pub. L. 109–280, title XII, § 1219(a)(1), (2), Aug. 17, 2006, 120 Stat. 1083; Pub. L. 111–147, title V, § 512(a), Mar. 18, 2010, 124 Stat. 110; Pub. L. 111–152, title I, § 1409(b)(1), (2), Mar. 30, 2010, 124 Stat. 1068, 1069; Pub. L. 113–295, div. A, title II, § 208(a), Dec. 19, 2014, 128 Stat. 4028; Pub. L. 114–41, title II, § 2004(c), July 31, 2015, 129 Stat. 456; Pub. L. 115–97, title I, § 11011(c), Dec. 22, 2017, 131 Stat. 2070; Pub. L. 115–141, div. T, § 101(a)(2)(A), div. U, title I, § 104(a), title IV, § 401(a)(303), (304), Mar. 23, 2018, 132 Stat. 1155, 1170, 1199; Pub. L. 116–260, div. EE, title II, § 212(b)(1), (2), Dec. 27, 2020, 134 Stat. 3067; Pub. L. 117–328, div. T, title VI, § 605(a)(2)(A), (B), Dec. 29, 2022, 136 Stat. 5394.)

cite as: 26 USC 6662