Frank and Virginia Muhich - Page 26




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          professional tax adviser.  See sec. 1.6664-4(b)(1), Income Tax              
          Regs.                                                                       
               The Muhichs seek relief from the penalty by arguing they               
          relied in good faith on advice from the Martins and Bartoli.                
          Good faith reliance on 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 of Memphis, Inc. v.                  
          Commissioner, T.C. Memo. 1995-610.                                          
               The record in this case demonstrates the Muhichs did not act           
          reasonably with respect to reporting their income for 1994 and              
          1995.  The Muhichs' claim that they relied in good faith on the             
          Martins for advice as to the tax treatment of the trust scheme is           
          unsupported by the evidence.  The Muhichs failed to disclose to             
          the Martins they had purportedly divested themselves of most of             






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