Mark Friedman - Page 29

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          in the offering memoranda in these cases, especially the                    
          discussions of high writeoffs and risk of audit, should have                
          alerted a prudent and reasonable investor to the questionable               
          nature of the promised deductions and credits.  See Collins v.              
          Commissioner, 857 F.2d 1383, 1386 (9th Cir. 1988), affg. Dister             
          v. Commissioner, T.C. Memo. 1987-217; Sacks v. Commissioner, T.C.           
          Memo. 1994-217, affd. 82 F.3d 918 (9th Cir. 1996).                          
               Petitioners' reliance upon the Court of Appeals for the                
          Ninth Circuit's partial reversal of our decision in Osterhout v.            
          Commissioner, T.C. Memo. 1993-251, affd. in part and revd. in               
          part without published opinion sub nom. Balboa Energy Fund 1981             
          v. Commissioner, 85 F.3d 634 (9th Cir. 1996), is misplaced.  In             
          Osterhout, we found that certain oil and gas partnerships were              
          not engaged in a trade or business and sustained the                        
          Commissioner's imposition of the negligence additions to tax with           
          respect to one of the partners therein.11  The Court of Appeals             
          for the Ninth Circuit reversed our imposition of the negligence             


          11   Osterhout v. Commissioner, T.C. Memo. 1993-251, affd. in               
          part and revd. in part without published opinion sub nom. Balboa            
          Energy Fund 1981 v. Commissioner, 85 F.3d 634 (9th Cir. 1996),              
          involved a group of consolidated cases.  The parties therein                
          agreed to be bound by the Court's opinion regarding the                     
          application of the additions to tax under sec. 6653(a), inter               
          alia.  Accordingly, although the Court's analysis focused on one            
          taxpayer, the additions to tax were sustained with respect to all           
          of the taxpayers.                                                           







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