-33-
we understand petitioner to argue that it relied upon the advice
of competent professionals that the disputed amounts were not
wages. We disagree.
In order for petitioner to rely reasonably upon professional
advice so as possibly to negate any or all of the additions to
tax at issue, petitioner must prove by a preponderance of
evidence each prong of the following 3-prong test: (1) The
adviser was a competent professional who had sufficient expertise
to justify reliance, (2) petitioner provided necessary and
accurate information to the adviser, and (3) petitioner actually
relied in good faith on the adviser’s judgment. Neonatology
Associates, P.A. v. Commissioner, 115 T.C. 43, 99 (2000), affd.
299 F.3d 221 (3d Cir. 2002). Petitioner has not proven any of
these prongs. We sustain respondent’s determination as to the
applicability of the additions to tax. In their computation (or
computations) under Rule 155, the parties shall determine these
additions to tax taking into account (1) respondent’s concession
as to the other workers and (2) that the Form 941 for the taxable
quarter ended December 31, 1996, was timely filed.
_____________________________________
13(...continued)
petitioner’s reliance on that opinion to be misplaced. We note
that Spicer Accounting, Inc. v. United States, 918 F.2d 90, 93
(9th Cir. 1990), one of the principal cases upon which we rely to
decide the substantive issue, was decided by the Court of Appeals
for the Ninth Circuit.
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