Maschmeyer's Nursery Inc. - Page 22

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          (4th Cir. 1988), affd. sub nom. Skeen v. Commissioner, 864 F.2d             
          93 (9th Cir. 1989), affd. without published opinion 865 F.2d 1264           
          (5th Cir. 1989); Pessin v. Commissioner, 59 T.C. 473, 489 (1972);           
          sec. 6664(c)(1); sec. 1.6664-4(b)(1) and (2), Example (1), Income           
          Tax Regs.  Reliance on an adviser will not immunize the taxpayer            
          from liability, however, where the taxpayer knew or should have             
          known that its adviser lacked sufficient knowledge regarding the            
          subject matter of the consultation.  Patin v. Commissioner,                 
          supra; Ellwest Stereo Theaters v. Commissioner, T.C. Memo.                  
          1995-610; sec. 1.6664-4(b)(1) and (2), Example (1), Income Tax              
          Regs.                                                                       
               It is undisputed that Maschmeyer relied on the advice of               
          petitioner’s accountant, Wagner, in determining a rental for the            
          lease of tracts A and B, and in preparing the corporate tax                 
          returns reflecting these rental payments.  Respondent argues that           
          the penalty is nevertheless appropriate because Maschmeyer did              
          not rely on the advice of a real estate appraiser.  Respondent’s            
          argument is unwarranted on the particular facts of this case.               
          Maschmeyer is highly knowledgeable about a business he has been             
          engaged in for 20 years.  Wagner is a C.P.A. with many years’               
          experience in tax return preparation and thorough familiarity               
          with petitioner’s tax and financial situation.  It was not                  
          unreasonable for Maschmeyer to believe that together they could             
          determine an arm’s-length rent that accounted for all relevant              
          business and financial factors.  Their testimony and the exhibits           




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