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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heavily on the unpublished opinion of the Court of Appeals for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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