- 16 - 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.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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