William C. and Dorothy M. Smith - Page 17




                                       - 17 -                                         
          a profit.  Mrs. Smith had no experience operating a direct                  
          marketing business at the time she was recruited by her upline              
          distributor, Ms. Walsh.  Despite this lack of experience, Mrs.              
          Smith has principally relied only on advice she has received from           
          Ms. Walsh and other insiders.  While Ms. Walsh had experience as            
          a distributor for direct marketing companies, as Mrs. Smith’s               
          upline distributor Ms. Walsh did not need to concern herself with           
          Mrs. Smith’s profitability so long as Mrs. Smith was able to sell           
          products or recruit others to sell products.  See, e.g., Poast v.           
          Commissioner, T.C. Memo. 1994-399 (“for the most part,                      
          petitioners’ advisers were not experts as much as they were                 
          upliners with a financial stake in petitioners’ retail and                  
          downline sales”).  Ms. Walsh did not review any financial                   
          statements or budgets with Mrs. Smith.  Thus, we took Ms. Walsh             
          at her word when she testified that she was not so much concerned           
          about the past––or Mrs. Smith’s previous losses––as she was Mrs.            
          Smith’s ability to sell and recruit others.                                 
               Mrs. Smith testified that she also sought business advice              
          from her accountant.  However Mrs. Smith was contradicted by Ms.            
          Clark herself, who testified that her advice to Mrs. Smith was              
          largely confined to matters related to the preparation of Mrs.              
          Smith’s tax returns.  Ms. Clark did not review any financial                
          statements or budgets for Mrs. Smith, and there is nothing in the           
          record to suggest that Ms. Clark had any experience or expertise            







Page:  Previous  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Next 

Last modified: November 10, 2007