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Howard T. Owens, Jr., provided the following testimony at
trial:
my recollection was that I asked Fidelity to take the
money out of my own account. And quite frankly, I
gave--I was not aware until maybe a year and a half
later after I filed my returns for the year 1999. That
would be in 199--I did probably file them in August
because I had an extension. And I got a report back
from the IRS that I had failed to give them the 10
percent, or my wife had failed to give them the 10
percent, and we had filed joint accounts.
My recollection is that I had given the materials
to my accountant, and he just assumed probably when I
showed it to him that my wife was of age and would not
be penalized at that time. We had no discussion on it
or anything of that sort.
Obviously, I got a report indicating that it had
been taken out of my wife’s account, one--the report
that you have there. But I just didn’t look at it for
some reason.
And it seems to me that the logic of it would
appear, since neither of these accounts had been very
active and have not been active since, nor has the
joint account been active since, that there would be no
reason for me to take any money from her account and
pay a penalty for it when I have in excess or close to
$200,000 in my own account. Now I realize that
obviously I was wrong. And as I said before, it was
too late to roll it over because I wasn’t made aware of
it until some time, maybe a year later or so, when I
got a notice from the IRS.
So that I’m just asking the Court--it seems to me
that since there was substantial money and it was my
intention and it is my recollection that I did direct
them to take it from the account, I think they took it
from the wrong account. And I don’t think I should be
penalized for it. That’s the sum and substance.[2]
2 The Court notes that its resolution of this matter turns
principally on the legal question of whether it may depart from
(continued...)
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