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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:
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