- 37 - In Thompson v. United States, supra, the Court of Appeals for the Tenth Circuit held that the District Court did not abuse its discretion in instructing the jury that reasonable, good- faith reliance on the advice of a professional adviser constitutes a defense to negligence within the meaning of section 6653. This holding served to uphold the jury’s verdict in favor of the taxpayers on the issue of negligence. In Thompson v. United States, supra, the Government relied heavily on the unpublished opinion of the Court of Appeals for the Tenth Circuit in a similar Plastics Recycling case, Gilmore & Wilson Constr.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 petitioner’s contention regarding reliance. However, we have concluded, based on the totality of the facts and circumstances presented atPage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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