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petitioner has not convinced us that his employment restriction,
while prohibiting him from private practice, makes it illegal for
him to collect the fees received from such practice.
Accordingly, we find that petitioner's ability to receive the fee
was not impeded by law or employment restriction. The New York
court was apprised of petitioner's agreement with the Lipsig
firm. We believe that, by ordering that petitioner's waiver be
given effect so that half the attorney's fees be paid to Hester,
the New York court recognized petitioner's right to receive the
fee and, consequently, petitioner's ability to control the fee's
disposition. Accordingly, $408,318 is taxable to petitioner in
1987.
IV. Additions to Tax
A. Negligence
We have determined an underpayment in tax for 1987. Section
6653(a)(1)(A) imposes an addition to tax equal to 5 percent of
the entire underpayment if any portion of such underpayment is
due to negligence. Section 6653(a)(1)(B) imposes an addition to
tax equal to 50 percent of the interest payable under section
6601 with respect to the portion of the underpayment due to
negligence. "Negligence is lack of due care or failure to do
what a reasonable and ordinarily prudent person would do under
the circumstances." Neely v. Commissioner, 85 T.C. 934, 947
(1985)(quoting Marcello v. Commissioner, 380 F.2d 499, 506 (5th
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