Fred Henry - Page 24




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          since Mr. Henry's income was below the amount at which section               
          6012 would have required him to file a tax return for that year.             
               Henry & Estes Associates filed Form 1065 (U.S. Partnership              
          Return of Income) for 1992 (1992 Form 1065), which Mr. Gargiulo              
          prepared.  The partners of Henry & Estes Associates that were                
          shown in the 1992 Form 1065 were Fred Henry and Donna Henry.  The            
          $150,000 assistance payment that Mr. Henry received from du Pont             
          in 1992 was not reflected in the 1992 Form 1065.  Instead, that              
          form showed an ordinary loss from an orchid activity of Henry &              
          Estes Associates in the amount of $11,174.                                   
               Petitioner's Tax Treatment of                                           
               the $1,623,203 Settlement Payment                                       
               At some time before the jury verdict was reached in the                 
          trial in the lawsuit, Mr. Henry discussed the tax treatment of               
          any possible recovery that he might receive from du Pont with the            
          lead attorney for the plaintiffs at that time.  That attorney was            
          not an expert in tax matters.  In addition, after the jury                   
          verdict was reached, Mr. Henry raised in a social setting with               
          Mr. Tyler, the certified public accountant who had represented               
          him in settlement discussions with du Pont prior to the com-                 
          mencement of the lawsuit, the tax treatment of any possible                  
          recovery that he might receive from du Pont.                                 
               Mr. Henry retained Mr. Gargiulo to prepare his tax return               
          for 1994.  In preparing that tax return, Mr. Gargiulo asked Mr.              






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