Janet L. Wiest - Page 21




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          Neely v. Commissioner, 85 T.C. 934, 947 (1985).  The focus of               
          inquiry is the reasonableness of the taxpayer’s actions in light            
          of the taxpayer’s experience and the nature of the investment.              
          See Henry Schwartz Corp. v. Commissioner, 60 T.C. 728, 740                  
          (1973); see also Sacks v. Commissioner, 82 F.3d 918, 920 (9th               
          Cir. 1996) (whether a taxpayer is negligent in claiming a tax               
          deduction “depends upon both the legitimacy of the underlying               
          investment, and the due care in the claiming of the deduction”),            
          affg. T.C. Memo. 1994-217; Turner v. Commissioner, T.C. Memo.               
          1995-363.  In this regard, the determination of negligence is               
          highly factual.                                                             
               Under some circumstances, a taxpayer may avoid liability for           
          negligence if reasonable reliance on a competent professional               
          adviser is shown.  See United States v. Boyle, 469 U.S. 241, 250-           
          251 (1985); Freytag v. Commissioner, 89 T.C. 849, 888 (1987),               
          affd. 904 F.2d 1011 (5th Cir. 1990), affd. on another issue 501             
          U.S. 868 (1991).  However, reliance on professional advice,                 
          standing alone, is not an absolute defense to negligence, but               
          rather a factor to be considered.  See Freytag v. Commissioner,             
          supra.  For reliance on professional advice to excuse a taxpayer            
          from negligence, the taxpayer must show that the professional had           
          the requisite expertise, as well as knowledge of the pertinent              
          facts, to provide informed advice on the subject matter.  See               
          David v. Commissioner, 43 F.3d 788, 789-790 (2d Cir. 1995), affg.           






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