Michael G. Harvey and Penny B. Harvey - Page 11




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          case, the taxpayers relied upon their accountant for investment             
          advice.  Following Anderson, the court noted that the fact that             
          the accountant was entitled to receive compensation for the                 
          taxpayers’ investment does not make that advice per se                      
          unreasonable:  “the mere fact that * * *[the adviser] received              
          compensation for taxpayers’ reliance on his advice does not turn            
          him into a promoter whose advice cannot be considered                       
          independent.”  Gilmore & Wilson Constr. Co. v. Commissioner,                
          supra.  As in Anderson, the court noted that the accountant was             
          not in any way affiliated with the partnerships related to the              
          investment (other than a personal investment in one of them).               
               In the case at hand, unlike Anderson and Gilmore & Wilson              
          Constr. Co., Mr. Peterson was involved in Yuma Mesa from the                
          planning stages through its operation.  He was a promoter of the            
          partnership and was an officer and director of the corporation              
          which entered into the research and development agreement with              
          it.  Mr. Peterson falls far outside the role of an adviser who              
          simply received commissions from independent entities upon the              



          3(...continued)                                                             
          was discussed by the Court of Appeals for the Tenth Circuit in              
          accordance with its rule 36.3 in Thompson v. United States, 223             
          F.3d 1206, 1210 n.7 (l0th Cir. 2000), which was decided after the           
          briefs were filed in this case.  The court in Thompson, however,            
          addressed “the more limited question of whether a reliance                  
          instruction was warranted”; i.e., whether the district court                
          abused its discretion in instructing the jury that reliance on a            
          professional was a defense to the negligence penalties.  Id. at             
          1210.                                                                       





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