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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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