Melvin J. Laney and Carolyn A. Laney - Page 52

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            and that they show that they followed that advice.  Zfass v.                              
            Commissioner, 118 F.3d 184 (4th Cir. 1997), affg. T.C. Memo.                              
            1996-167.  Petitioners failed on all these counts in the instant                          
            case.  We do not credit petitioners’ contention that they relied                          
            on Henry’s advice.                                                                        
                  Petitioners point out that respondent did not dispute their                         
            1983, 1984, and 1985 theft/casualty deductions and carryovers.                            
            Respondent’s failure to audit merely results in an apparent                               
            windfall to petitioners; it does not relieve petitioners from                             
            their obligation to act prudently and obtain advice from                                  
            competent tax counsel.18                                                                  
                  We conclude, and we have found, that petitioners were                               
            negligent in claiming the theft/casualty carryover deductions for                         
            each of the years in issue.                                                               
                  For each of the years in issue the entire deficiency in tax                         
            is due to petitioners’ negligence in claiming the theft/casualty                          
            carryover deduction.  For each of the years in issue the                                  
            deficiency is equal to the “underpayment of tax”, which is the                            


                  18    We have held that, under some circumstances, an audit                         
            for an earlier year and a concession by the Commissioner that the                         
            corresponding deduction for the earlier year was correct, might                           
            relieve a taxpayer from the obligation to thereafter obtain                               
            advice from competent tax counsel.  See, e.g., Bermingham v.                              
            Commissioner, T.C. Memo. 1994-69; see also Washburn v.                                    
            Commissioner, 44 T.C. 217, 225-226 (1965).  There was no such                             
            audit in the instant case, and no apparent approval by respondent                         
            as to the claimed theft/casualty loss deductions.                                         





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