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In his reply brief, Mr. Henry further contends:
In regard to penalties, the petitioner relied on
the advice of his tax preparer, an enrolled agent. An
enrolled agent has sufficient training in tax. See
Treasurer [sic] Circular 230. Thus the petitioner was
entitled to rely on his advice. The advice given was
based on the generally available tax information at the
time and was based on recognized tax publications. The
Schleier case would not have shown in any publications
at the time of the advice. * * *
We address first petitioner's claimed reliance on his return
preparer, Mr. Gargiulo. In this regard, the following testimony
of Mr. Gargiulo is instructive:
Q So who provided you with the characterization
of the money. In other words, how did you come to
understand what the character of this money in '94 was?
A Through discussions with Mr. Henry. And he
had sought other outside help.
* * * * * * *
Q So as far as you were concerned --
* * * * * * *
Q -- it was -- as long as it came from a damage
award, it was excludable.
A For personal injury. Yes.
Q But what did the personal injury have to do
with the matter?
A That's the character of the award.
Q In other words, if the damage was for personal
injury, it was your understanding that it was ex-
cludable?
A Yes, sir.
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