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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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