James H. Upchurch - Page 13

                                        - 13 -                                          
               The reliance must be objectively reasonable; taxpayers                   
               may not rely on someone with an inherent conflict of                     
               interest, or someone with no knowledge concerning that                   
               matter upon which the advice is given.  In this regard,                  
               the Supreme Court noted that "when an accountant or                      
               attorney advises a taxpayer on a matter of tax law,                      
               such as whether liability exists, it is reasonable for                   
               the taxpayer to rely on that advice."  [Fn. refs.                        
               omitted.]                                                                
          The Court of Appeals, in a footnote, made the comment that the                
          Chamberlain case "demonstrates that one may enter into a                      
          transaction without a profit motive but not be negligent in                   
          claiming a tax loss if that claim is in reasonable reliance on                
          the advice of a tax expert."  Id. at 733 n.23.                                
               Respondent contends that the Chamberlain holding is                      
          distinguishable from petitioner's situation.  The tax or                      
          professional adviser in Chamberlain was an accountant                         
          unaffiliated with the investment promoters or sellers and,                    
          therefore, did not have a conflict of interest.  See Chamberlain              
          v. Commissioner, T.C. Memo. 1994-228.                                         
               Finally, in Norgaard v. Commissioner, supra at 880, the                  
          Court of Appeals for the Ninth Circuit found that the taxpayers'              
          method of accounting for gambling losses met the standard of due              
          care or "what a reasonable and prudent person would do" and                   
          consequently that they were not negligent.  Respondent contends               
          that Norgaard is distinguishable because the deductions in that               
          case would have been allowable if substantiated.  Here,                       
          petitioner must show that he met the standard of care that the                
          Court of Appeals for the Ninth Circuit found was met in Norgaard.             




Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011