Martin Ice Cream Company - Page 70

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            1.6661-3(b)(1), Income Tax Regs.  Petitioner cited no case law or                           
            regulations in support of its position.  Petitioner has cited as                            
            substantial authority only the advice given by its hired                                    
            professionals.  Advice of hired professionals, even when reasonable                         
            under the circumstances--and regardless of the form in which it is                          
            rendered--does not constitute substantial authority.  Gallade v.                            
            Commissioner, supra at 367; sec. 1.6661-3(b)(2), Income Tax Regs.                           
            Indeed, in light of the facts in this case, the weight of authority                         
            directly supported respondent on the issue of “active conduct of a                          
            trade or business”.  Sec. 355(a)(1)(C) and (b).  Petitioner did not                         
            have substantial authority for taking a position that the split-off                         
            qualified for nonrecognition of gain under section 355.                                     
                  Section 6661(c) authorizes the Commissioner to waive “all or any                      
            part of the addition to tax * * * on a showing by the taxpayer that                         
            there was reasonable cause for the understatement (or part thereof)                         
            and that the taxpayer acted in good faith.”  While the authority to                         
            waive the section 6661(a) addition to tax rests with the Commissioner                       
            and not with this Court, we review a denial of waiver by the                                
            Commissioner under the abuse of discretion standard.  Gallade v.                            
            Commissioner, supra at 367-368; Mailman v. Commissioner, 91 T.C. 1079,                      
            1084 (1988).                                                                                
                  We find no evidence in the record that petitioner ever requested                      
            a waiver.  Accordingly, as we noted in Alondra Indus., Ltd. v.                              
            Commissioner, T.C. Memo. 1996-32, and Brown v. Commissioner, T.C.                           
            Memo. 1992-15, “we cannot find that respondent abused his discretion                        





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