Carl L. and Eugenia T. Henn - Page 13




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          stated only the following as counsel’s opinion concerning a                 
          section 174 deduction:                                                      
               The deductions which may be available to the partnership               
               under Section 174 (Research and Development) of the Internal           
               Revenue Code are dependent upon the acceptance by the                  
               Internal Revenue Service or the courts of the Partnership’s            
               characterization of the transaction as a payment of research           
               and development fees to the Contractor.                                
          It appears that counsel in fact expressed no opinion concerning             
          the propriety of the deduction, but instead merely stated that              
          the partnership would take the deduction.  Although it may have             
          been reasonable if petitioners had overlooked certain minor                 
          details in the summary of the letter, petitioners should have               
          been alerted to the importance of this claimed deduction:  The              
          memorandum clearly stated that approximately 95 percent of the              
          capital contributed to the partnership would be immediately                 
          expended under the research and development contracts.  Among the           
          various cautionary statements in the memorandum was a discussion            
          concerning the risks involved in the partnership’s claiming a               
          deduction with respect to this expense, and the memorandum also             
          specifically stated that no ruling would be requested by the                
          partnership from the Internal Revenue Service regarding this                
          issue.                                                                      
               As support for a reliance defense, petitioners cite the                
          unpublished opinion of the Court of Appeals for the Ninth Circuit           
          in Balboa Energy Fund 1981 v. Commissioner, 85 F.3d 634 (9th Cir.           
          1996), affg. in part and revg. in part sub nom. without published           





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