Thomas E. Johnston and Thomas E. Johnston, Successor in Interest to Shirley L. Johnston, Deceased, et al. - Page 16




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          To similar effect, this Court stated in Bernardo v. Commissioner,           
          supra at 691 (fn. ref. omitted), that the taxpayers did not                 
          impliedly waive the privilege where they did not “affirmatively             
          raise a claim that can only be effectively disproven through the            
          discovery of attorney-client communications”.  Given this                   
          precedent and section 7453, we structure our discussion here                
          within the three criteria of the foregoing test.                            
               The statutory notices issued to Mr. Johnston determine                 
          deficiencies and section 6663 fraud penalties for each of the               
          years 1989, 1991, and 1992.  After petitions were filed in these            
          cases, respondent submitted answers affirmatively setting forth             
          the facts upon which respondent relied in support of the fraud              
          determinations, as required by Rule 36(b) with respect to issues            
          on which respondent bears the burden of proof.  Mr. Johnston, in            
          accordance with Rule 37(b), then followed with replies denying              
          the majority of respondent’s affirmative allegations.  The                  
          replies also included additional material addressing affirmative            
          defenses.  The reply relating to Mr. Johnston’s 1989 tax year               
          stated:                                                                     
                    By way of Affirmative Defense to the matters                      
               affirmatively alleged by Respondent in its answer,                     
               Petitioners allege as follows:                                         
                         *    *    *    *    *    *    *                              
                    12) In preparing Petitioner’s returns for 1989,                   
               Petitioners relied upon advice of qualified experts for                
               the underlying information developed and reported on                   
               Petitioner’s income tax return for 1989.                               





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