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A nearly identical reference to the “advice of qualified experts”
was made in the reply dealing with the 1991 and 1992 tax years.
It is on the above-quoted statement pertaining to 1989 that
respondent bases contentions of implied waiver.
Petitioners’ response to respondent’s argument consists, in
its entirety, of the paragraph reproduced below:
Respondent argues, (p.7), that the Petitioner
relied on Advice of Counsel in his defense of the
within proceeding in his Reply referring to “qualified
experts” assisting him in preparing his 1989 tax
return. However, the Petitioner’s reference in his
Reply to “qualified experts” assisting him was his
accountant who assisted him in the filing of his Form
1040X for the calendar year 1989 [1-R]. He does not
refer to a lawyer. Therefore, there has been no
defense of advice of counsel and Respondent’s argument
is misplaced.
It is within the just-described context that we turn to
consideration of the three requirements for implied waiver. As
previously indicated, the first mandates that the privilege be
asserted as the result of some affirmative act. Here, Mr.
Johnston asserted reliance on qualified experts as an affirmative
defense to respondent’s fraud penalty allegations.
In Hearn v. Rhay, supra at 576-577, the plaintiff brought
suit claiming that his civil rights were violated during his
incarceration in a State penitentiary. The defendants asserted
the affirmative defense of qualified immunity based upon having
acted in good faith, and the plaintiff sought discovery of legal
advice the defendants received with respect to his confinement.
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