Calypso Music Incorporated - Page 14




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           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, Inc. v. Commissioner, T.C. Memo. 1995-            
           610; see also Rule 142(a).                                                 
                We have no doubt on the record before us that Daryl Kell,             
           petitioner’s only officer, actually relied in good faith on the            
           certified public accountants who prepared the returns.  We note            
           that the 1996 and 1997 returns were prepared by different firms            
           of public accountants.7  Petitioner was justified in its                   
           reliance on its advisers.  We find credible Mr. Kell’s                     
           testimony that he made available all necessary information to              
           the return preparers.  In this circumstance, we shall not                  
           sustain respondent’s determination of the accuracy-related                 
           penalties.                                                                 
                Accordingly,                                                          


                                              Decision will be entered                
                                         under Rule 155.                              


               7 Respondent argues petitioner did not offer the testimony             
          of its return preparers, Robert Fogleman and Steven McNulty.  The           
          failure to introduce the testimony of the return preparers which            
          if true would have been favorable to petitioner, gives rise to              
          the presumption that such testimony would not have been                     
          favorable.  See Wichita Terminal Elevator Co. v. Commissioner, 6            
          T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th  Cir. 1947).               
          Having found Mr. Kell’s testimony in this regard credible, we               
          find the presumption overcome.                                              





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