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colloquy transpired at trial between Ludlow and counsel for
respondent:
Q [Counsel for respondent] Are you familiar with
the case, Texas Carbonate versus Phinney?
A [Ludlow] No.
Q Have you ever discussed that case with anyone?
A No.
Petitioner proposed to call Grey, the accountant who advised
petitioner and prepared petitioner’s tax returns. Grey was not
allowed to testify in this case because he had not been listed as
a witness in petitioner’s trial memorandum, in violation of this
Court’s Standing Pre-Trial Order. See Rule 131(b). His
testimony, in any event, would not have made a difference. See
Veterinary Surgical Consultants, P.C. v. Commissioner, T.C. Memo.
2003-48 (where Grey testified that he was unaware of the Tex.
Carbonate Co. v. Phinney, supra, case until posttrial briefing,
during the fall of 2001, in Joseph M. Grey Pub. Accountant, P.C.
v. Commissioner, 119 T.C. 121 (2002)). Petitioner failed to
establish that it relied on judicial precedent or, for that
matter, on any of the other sources specified in Section
530(a)(2)(A). Accordingly, we conclude that subparagraph (A)
does not aid petitioner here.
The same result obtains with respect to subparagraphs (B)
and (C). The parties have stipulated that respondent did not
audit petitioner for employment tax purposes prior to the
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