Sherry P. Aude - Page 12

                                       - 12 -                                         
          The Court of Appeals for the Ninth Circuit's test for knowledge             
          in erroneous deduction cases is applicable to this case.  Golsen            
          v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th               
          Cir. 1971).  Under this test, mere knowledge of the transaction             
          will not cause denial of relief; rather, the test is whether                
          petitioner had knowledge that the deduction would give rise to a            
          substantial understatement.  Price v. Commissioner, supra at 963.           
               Respondent contends that the evidence clearly shows that               
          petitioner had actual knowledge of the underlying facts of the              
          investment.  Respondent primarily relies on petitioner's                    
          participation in the late 1979 or early 1980 meeting where the              
          Magnum investment was discussed.                                            
               While the meeting regarding the Magnum investment occurred,            
          the record provides conflicting evidence concerning who attended            
          this meeting.  Mr. Gruys clearly stated that he and petitioner              
          attended the meeting along with Mr. Aude and Mr. Saranni.                   
          However, petitioner's recollection is that Mr. Gruys did not                
          attend the meeting; that she met with Mr. Saranni briefly; and              
          that she sat in the lobby of the hotel while the meeting between            
          Mr. Saranni and Mr. Aude occurred in another room.  In light of             
          petitioner's burden, we cannot find that petitioner did not                 
          attend the meeting.                                                         
               While petitioner had knowledge of the underlying transaction           
          by attending the meeting, knowledge of the transaction alone will           
          not cause denial of relief to petitioner, unless petitioner knew            




Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011