Bruce and Lois Zenkel, et al. - Page 54

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               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 respondent's               
          imposition of the negligence additions to tax with respect to one           
          of the partners therein.5  The Court of Appeals for the Ninth               
          Circuit reversed our imposition of the negligence additions to              
          tax.  Petitioners point out that the taxpayer in that case relied           
          in part upon a tax opinion contained in the offering materials.             
          However, the offering memoranda for the Partnerships herein                 
          warned prospective investors that the accompanying tax opinion              
          letters were not in final form, and were prepared for the general           
          partner, and that prospective investors should consult their own            
          professional advisers with respect to the tax benefits and tax              
          risks associated with the respective Partnerships.  The tax                 
          opinion letters accompanying the SAB Reclamation and SAB                    

          5         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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