James D. Barber and Betty L. Barber - Page 47




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               In Thompson v. United States, supra, the Government relied             
          heavily on the unpublished opinion of the Court of Appeals for              
          the Tenth Circuit in a similar Plastics Recycling case, Gilmore &           
          Wilson Constr. Co. v. Commissioner, 166 F.3d 1221 (10th Cir.                
          1999), affg. Estate of Hogard v. Commissioner, T.C. Memo. 1997-             
          174.  The Court of Appeals dismissed the Government’s  assertion            
          that its holding in that case was dispositive of the issue before           
          it:                                                                         
               In that case we reviewed the tax court’s factual                       
               determination, made after a bench trial, that the                      
               taxpayers were negligent.  Here we consider the more                   
               limited question of whether a reliance instruction was                 
               warranted.  Had we been presented with such a question                 
               in Gilmore & Wilson, we would likely have upheld the                   
               instruction.  See id. at *5 (“The evidence introduced,                 
               both at trial and through stipulation, presents a close                
               question regarding whether taxpayers were negligent.”)                 
               For this reason, the government’s reliance on Gilmore &                
               Wilson is misplaced. [Thompson v. United States, supra                 
               at 1210; fn. ref. omitted.]                                            
               In the present cases, we have considered petitioners’                  
          contention regarding reliance.  However, we have concluded, based           
          on the totality of the facts and circumstances presented at                 
          trial, that petitioners’ professed reliance on Winer,                       
          petitioner’s brother, and Thompson was not reasonable.                      
          Accordingly, we regard Thompson v. Commissioner, supra, as                  
          distinguishable from the present cases.                                     
               In Klein v. United States, supra, the District Court denied            
          the Government’s motion for summary judgment on the issue of the            
          taxpayers’ liability for additions to tax for negligence.  The              





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