- 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 expertisePage: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: November 10, 2007