- 44 - of deficiency or that respondent suffered any harm as a result of his reliance. Petitioner also contends that the duty of consistency does not apply because petitioner did not intentionally misrepresent BAC’s S status or even know that BAC’s S election was improper. Petitioner’s argument that respondent could not have reasonably relied upon BAC’s S corporation election when issuing the notices of deficiency, because respondent knew or had reason to know the S election was invalid, is based on the testimony of his accountant, Mr. DiMaggio. Mr. DiMaggio testified that the auditing agent, Ms. Witek, became aware of a problem with BAC’s S corporation election by watching petitioners’ divorce proceeding in 1991. Taking Mr. DiMaggio’s testimony in context, it appears that the problem Mr. DiMaggio described in his testimony involved a dispute between petitioners regarding the ownership of BAC, not the validity of its S election. Even if we were to believe Mr. DiMaggio’s testimony that Ms. Witek somehow became aware of a dispute between petitioners regarding the ownership of BAC, we disagree with petitioner’s conclusion that such knowledge put respondent on notice regarding a problem with BAC’s S election. Although petitioners raised an issue regarding which one of them owned BAC during the pendency of the divorce case, neither petitioner raised or acknowledged any issue concerning thePage: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Next
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