Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polacheck, Co-Executors - Page 20

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               SWIFT, J., concurring:  Judge Ruwe’s dissent acknowledges              
          that under section 2053(a) an estate, or a preparer of an estate            
          tax return, may estimate and claim on the estate tax return,                
          expenses not yet incurred if such expenses are reasonably                   
          anticipated and an amount therefor can be reasonably estimated.             
          See sec. 20.2053-1(b)(3), Estate Tax Regs.                                  
               In Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35,            
          we found that the executor in this case “knowingly” filed a                 
          fraudulent estate tax return.  Because the fraud was “known” at             
          the time the estate tax return was filed, it would appear that it           
          would not have been unreasonable (albeit perhaps a poor strategy)           
          for the tax return preparer to have anticipated respondent’s                
          audit and the litigation that followed and, under section 2053,             
          to have estimated on the estate tax return a reasonable amount              
          for legal fees likely to be incurred in connection with the                 
          litigation and to have claimed such expenses as deductions.                 
               I note that under current law and ethical guidelines, tax              
          return preparers may no longer consider the audit lottery when              
          evaluating the “reasonableness” of tax return positions.  See               
          Treas. Dept. Circular No. 230 (Regulations Governing the Practice           
          * * * Before the Internal Revenue Service); AICPA Statements on             
          Responsibilities in Tax Practice No. 1, par. 03a and                        
          Interpretation No. 1-1, par. 05; ABA Ethics Opinion 85-352.                 
               Circular No. 230 at section 10.34(a)(4)(i) provides as                 
          follows:                                                                    



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