- 20 - SWIFT, J., concurring: Judge Ruwe’s dissent acknowledges that under section 2053(a) an estate, or a preparer of an estate tax return, may estimate and claim on the estate tax return, expenses not yet incurred if such expenses are reasonably anticipated and an amount therefor can be reasonably estimated. See sec. 20.2053-1(b)(3), Estate Tax Regs. In Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35, we found that the executor in this case “knowingly” filed a fraudulent estate tax return. Because the fraud was “known” at the time the estate tax return was filed, it would appear that it would not have been unreasonable (albeit perhaps a poor strategy) for the tax return preparer to have anticipated respondent’s audit and the litigation that followed and, under section 2053, to have estimated on the estate tax return a reasonable amount for legal fees likely to be incurred in connection with the litigation and to have claimed such expenses as deductions. I note that under current law and ethical guidelines, tax return preparers may no longer consider the audit lottery when evaluating the “reasonableness” of tax return positions. See Treas. Dept. Circular No. 230 (Regulations Governing the Practice * * * Before the Internal Revenue Service); AICPA Statements on Responsibilities in Tax Practice No. 1, par. 03a and Interpretation No. 1-1, par. 05; ABA Ethics Opinion 85-352. Circular No. 230 at section 10.34(a)(4)(i) provides as follows:Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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