Stephen and Ann Schwalbach - Page 25

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          the advice of counsel or a qualified accountant can, in certain             
          circumstances, be a defense to the accuracy-related penalty for             
          negligence.  See, e.g., Ewing v. Commissioner, 91 T.C. 396,                 
          423-424 (1988), affd. without published opinion 940 F.2d 1534               
          (9th Cir. 1991); Jackson v. Commissioner, 86 T.C. 492, 539-540              
          (1986), affd. 864 F.2d 1521 (10th Cir. 1989); Pessin v.                     
          Commissioner, 59 T.C. 473, 489 (1972); Conlorez Corp. v.                    
          Commissioner, 51 T.C. 467, 475 (1968).  In those cases, the                 
          taxpayer must establish:  (1) The adviser had sufficient                    
          expertise to justify reliance, (2) the taxpayer provided                    
          necessary and accurate information to the adviser, and (3) the              
          taxpayer actually relied in good faith on the adviser’s judgment.           
          See Ellwest Stereo Theatres v. Commissioner, T.C. Memo. 1995-610.           
               The record shows that petitioners acted reasonably with                
          respect to the items reported on their 1994 tax return.  They               
          consulted their long-time business and tax adviser, an                      
          experienced and knowledgeable accountant, and they supplied him             
          with the information necessary to prepare their return.  The                
          C.P.A. advised petitioners on what he believed was the correct              
          reporting position of the items reported in the return, and                 
          petitioners relied on and followed his advice.  Under the facts             
          herein, we believe that petitioners' reliance on the C.P.A. to              
          prepare a correct return was reasonable, and we hold for them on            
          this issue.                                                                 





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