MYERS v. COMMISSIONER

T.C. Summary Opinion 2001-141

UNITED STATES TAX COURT

DOLORES J. MYERS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

ESTATE OF JAMES T. MYERS, DECEASED AND
DOLORES J. MYERS, SURVIVING WIFE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 15862-99S, 16247-99S. Filed September 14, 2001.

Thomas R. Daniel, for petitioners.

Brian M. Harrington, for respondent.

MARVEL, Judge: These cases were heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1 The decisions to be entered

1
All subsequent section references are to the Internal
Revenue Code in effect for the years at issue, unless otherwise
(continued...)
 - 2 -

are not reviewable by any other court, and this opinion should

not be cited as authority.

Respondent determined the following additions to tax with

respect to petitioners’ Federal income taxes:

Dolores J. Myers, docket No. 15862-99S

Sec. Sec. Sec. Sec.
Year 6653(a)(1) 6653(a)(2) 6653(a)(1)(A) 6653(a)(1)(B)

1985 $15.50 50 percent -- -–
of interest
due on $310

1986 –- –- $24.60 50 percent
of interest
due on $492

Estate of James T. Myers, Deceased & Dolores J. Myers, Surviving
Wife, docket No. 16247-99S

Sec. Sec.
Year 6653(a)(1) 6653(a)(2)

1982 $185.00 50 percent
of interest
due on $3,700

1983 20.80 50 percent
of interest
due on $416

These cases were consolidated for trial, briefing, and opinion

pursuant to Rule 141(a) because they present common issues of

fact and law.

1
(...continued)
indicated, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
 - 3 -

The only issues2 for decision are:

1) Whether respondent is obligated to offer petitioners

terms of settlement regarding their investment in Jojoba Research

Partners, Hawaii, a limited partnership (Jojoba), consistent with

terms offered to other limited partners in Jojoba, and

2) whether petitioners are liable for the additions to tax

for negligence pursuant to section 6653(a)(1) and (2) for the

taxable years 1982, 1983, and 1985 and pursuant to section

6653(a)(1)(A) and (B) for the taxable year 1986.

Background

Some of the facts have been stipulated and are so found. We

incorporate the stipulation of facts herein by this reference.

Mrs. Myers resided in Kailua, Hawaii, on the date the petitions

were filed.

The Myerses’ Relationship With Ralph Matsuda

In 1980 or 1981, James and Dolores Myers (hereinafter

referred to individually as Mr. Myers and petitioner and

2
Mrs. Myers contended she was entitled to relief from joint
and several liability in docket No. 16247-99S pursuant to sec.
6015(b), (c), or (f). On brief, however, she conceded that she
improperly brought this claim under sec. 6015. We, therefore, do
not address whether sec. 6015 is applicable herein.
Petitioners also contended that respondent improperly
offered petitioners’ settlement to the tax matters partner (TMP),
who improperly rejected that offer on petitioners’ behalf. In
light of the testimony presented at trial and petitioners’
failure to address this argument on brief other than as a
requested finding of fact, we decline to address this issue.
Rule 151(e).
 - 4 -

collectively as the Myerses) became concerned about their

retirement planning and began to attend investment seminars given

by Ralph S. Matsuda, a certified financial planner. Mr. Matsuda

had been employed as director of financial planning by American

Savings & Loan from 1975 to 1980, worked for Progressive

Investment Corp. as a director of financial planning from 1980 to

1982, and was a self-employed financial planner from 1982 through

at least 1983. Petitioner knew he had a good reputation, and

some of the Myers’s friends had invested with him.

In 1981, the Myerses met with Mr. Matsuda to review their

finances; Mr. Matsuda confirmed that they had insufficient

retirement funds. Thereafter, Mr. Myers, and sometimes

petitioner, attended numerous seminars presented by Mr. Matsuda.

Petitioner trusted Mr. Myers to identify and implement

investments appropriate to their retirement goals. Between 1981

and 1984, the Myerses made eight investments in ventures proposed

by Mr. Matsuda. One of those investments was in Jojoba.

The Myerses’ Investment in Jojoba

Jojoba had entered into agreements with U.S. Agri-Research

and Development Corp. (Agri-Research) under which Agri-Research

would provide agricultural research and development services with

respect to the growing of jojoba plants. In connection with its

activities, Jojoba planned to deduct research and development
 - 5 -

expenditures under section 174, which, it expected, would

generate tax benefits for its investors.

Mr. Myers, but not petitioner, attended Mr. Matsuda’s

seminar on Jojoba and received a private placement memorandum

(PPM) in connection with a prospective investment in Jojoba.

Petitioner did not examine the PPM until after Mr. Myers’s death

in 1984. The PPM, dated October 28, 1982, stated: “THIS

OFFERING INVOLVES A HIGH DEGREE OF RISK”. The PPM also stated:

PROSPECTIVE INVESTORS ARE CAUTIONED NOT TO
CONSTRUE THIS MEMORANDUM OR ANY PRIOR OR SUBSEQUENT
COMMUNICATIONS AS CONSTITUTING LEGAL OR TAX ADVICE.
* * * INVESTORS ARE URGED TO CONSULT THEIR OWN COUNSEL
AS TO ALL MATTERS CONCERNING THIS INVESTMENT.

PRIOR TO THE SALE OF ANY UNITS, EACH PURCHASER
AND/OR HIS OFFEREE REPRESENTATIVE SHALL HAVE THE
OPPORTUNITY TO ASK QUESTIONS OF THE GENERAL PARTNER
CONCERNING ANY ASPECT OF THE INVESTMENT DESCRIBED
HEREIN. EACH INVESTOR MAY OBTAIN ANY ADDITIONAL
INFORMATION NECESSARY TO VERIFY THE ACCURACY OF THE
INFORMATION CONTAINED IN THIS MEMORANDUM TO THE EXTENT
THAT THE GENERAL PARTNER POSSESSES SUCH INFORMATION OR
CAN ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE.

* * * * * * *

NO REPRESENTATIONS OR WARRANTIES OF ANY KIND ARE
INTENDED OR SHOULD BE INFERRED WITH RESPECT TO THE
ECONOMIC RETURN OR TAX ADVANTAGES WHICH MAY ACCRUE TO
THE INVESTORS IN THE UNITS.

EACH PURCHASER OF UNITS HEREIN SHOULD AND IS
EXPECTED TO CONSULT WITH HIS OWN TAX ADVISOR AS TO THE
TAX ASPECTS.

In addition to the general warnings, the PPM described the risk

factors with respect to the projected Federal income tax

consequences of an investment in Jojoba as follows:
 - 6 -

The General Partner anticipates that a substantial
portion of the capital contributions of the Limited
Partners to the Partnership will be used for research
and experimental expenditures of the type generally
covered by Section 174 of the Code. However,
prospective investors should be aware that there is
little published authority dealing with the specific
types of expenditures which will qualify as research or
experimental expenditures within the meaning of Section
174, and most of the expenditures contemplated by the
Partnership have not been the subject of any prior
cases or administrative determinations.

* * * * * * *

No ruling by the Service has been or will be sought
regarding deductibility of the proposed expenditures
under Section 174 of the Code.

Before investing in Jojoba, Mr. Myers and petitioner

discussed whether it was an appropriate addition to their

retirement investments. On the basis of their own projections,

they concluded it was. Mr. Myers and petitioner estimated an

initial investment of approximately $20,000 in Jojoba would

produce an annual stream of income of approximately $20,000,

beginning after the jojoba beans reached maturity and were

processed--6 or 7 years from the date of investment. Although

petitioner was aware there might be agricultural problems, she

believed that jojoba beans did not require a lot of maintenance

and that there would be a market for jojoba products. She had

seen jojoba products in stores and had read an article about

jojoba beans being used in foods.
 - 7 -

In December 1982, the Myerses decided jointly to invest

$19,950 in Jojoba.3 On or about December 12, 1982, Mr. Myers

signed the offeree questionnaire, in which he indicated he did

not intend to rely upon the advice of any other person, attorney,

broker, or investment adviser in evaluating the merits and risks

of the Jojoba investment. Mr. Myers also filled out a

subscription agreement, a promissory note, and a limited guaranty

agreement, each of which Mr. Myers and petitioner subsequently

signed.

The subscription agreement confirmed the Myerses’ agreement

to purchase seven units in Jojoba for $19,950 and provided:

3. Subscriber hereby makes the following
representations and appointment:

(a) His offer to purchase is based solely
upon information contained in the Partnership’s Private
Placement Memorandum and on his own independent
evaluation, which may include the counsel of his own
advisors;

(b) He has received a copy of the
Partnership’s Private Placement Memorandum and the
Agreement of Limited Partnership (“Partnership
Agreement”) and hereby confirms that no
representations, other than those contained in the
Partnership Private Placement Memorandum, have been
made by the General partners or by any agent or
affiliate thereof;

3
On Nov. 26, 1985, petitioner assigned her interest in
Jojoba (all seven units) to the Dolores L. Myers or Successor as
Trustee Trust. The notice of deficiency for 1985 and 1986,
however, was issued to petitioner in her individual capacity, the
petition was filed in her individual capacity, and neither party
has alleged that we do not have jurisdiction.
 - 8 -

* * * * * * *

(h) He has carefully reviewed and
understands the various risks of an investment in the
Partnership, including the risks summarized in the
Private Placement Memorandum under “The Risks Factors”
and described in greater detail elsewhere in the
Memorandum; * * *

* * * * * * *

(j) He understands that an investment in the
Partnership is speculative and involves a high degree
of risk, [and that] there is no assurance as to the tax
treatment of items of Partnership income, gain, loss,
[or] deductions of credit * * *

The Myerses paid for their seven units in Jojoba by check

for $7,000 and by issuing the jointly signed promissory note for

the balance, $12,950. Mr. Matsuda received a commission on the

sale of the Jojoba units to the Myerses.

Audit of Jojoba and Settlement Offers

In November 1988, respondent sent to Mr. Matsuda, Jojoba’s

tax matters partner (TMP), and to petitioners and other limited

partners notices of final partnership administrative adjustment

(FPAA) for the partnership taxable years 1982 through 1986.4 In

July or August of 1991, some limited partners settled with

respondent regarding the taxable years covered by the FPAAs.

4
The record includes notices of final partnership
administrative adjustment (FPAA) only for the partnership taxable
years 1982, 1983, 1985, and 1986, the taxable years before us.
The FPAAs for 1982 and 1983, however, indicate that the
partnership taxable year 1984 was also adjusted.
 - 9 -

On October 10, 1993, Mr. Matsuda, in his capacity as

Jojoba’s TMP, entered into a stipulation with respondent agreeing

to be bound by this Court’s decision in Utah Jojoba I Research v.

Commissioner, T.C. Memo. 1998-6. The facts regarding the

underlying deficiency in Utah Jojoba I Research are substantially

identical to those in this case. In Utah Jojoba I Research, we

held that the partnership was not entitled to deduct its losses

for research and development expenditures under section 174. On

June 17, 1998, we entered a decision against Jojoba, the

partnership involved in this case, adjusting the partnership

items of Jojoba by disallowing the research and development

expense deduction claimed for 1982 and upholding adjustments to

Jojoba’s reporting position regarding management fees and

interest income for taxable years 1983 through 1986.

Tax Returns

For the taxable years 1982 and 1983, Jojoba allocated

ordinary losses of $18,159 and $1,685, respectively, to the

Myerses, as reflected in their 1982 and 1983 Schedules K-1,

Partner’s Share of Income, Credits, Deductions, etc., issued by

Jojoba, which the Myerses deducted on their 1982 and 1983 Federal

income tax returns, respectively.

For each of the taxable years 1985 and 1986, Jojoba

allocated an ordinary loss of $1,685 to petitioner, as reflected

in her 1985 and 1986 Schedules K-1, issued by Jojoba, which
 - 10 -

petitioner5 deducted on her 1985 and 1986 Federal income tax

returns, respectively.

On July 16, 1999, respondent issued a notice of deficiency

to petitioners for 1982 and 1983 in which he determined that

petitioners are liable for additions to tax for negligence

pursuant to section 6653(a)(1) and (2) for 1982 and 1983 in

connection with our decision entered against Jojoba.

On July 2, 1999, respondent issued a notice of deficiency to

petitioner for 1985 and 1986 in which he determined that

petitioner is liable for additions to tax for negligence pursuant

to section 6653(a)(1) and (2) for 1985 and pursuant to section

6653(a)(1)(A) and (B) for 1986 in connection with our decision

entered against Jojoba.

Discussion

I. Consistent Settlement Offer

The first issue we must decide is whether respondent is

required to enter into a consistent settlement agreement with

petitioners under section 6224. We address this issue assuming,

but not deciding, that the issue is properly before the Court.

Petitioners contend that respondent is obligated to offer them

terms of settlement consistent with settlement agreements entered

5
Mr. Myers died in 1984. In late 1984, petitioner attended
a class in Federal income tax at Hawaii Pacific College. In 1988
and 1989, petitioner completed classes in basic and intermediate
income tax preparation at H&R Block.
 - 11 -

into with other Jojoba partners because respondent improperly

failed to notify petitioners of those other settlement

agreements. Respondent contends that he did not act improperly

with regard to the offers of settlement to Jojoba partners and is

therefore not now obligated to extend to petitioners any offer of

settlement. We agree with respondent.

Section 6224(c)(2) provides:

If the Secretary enters into a settlement agreement
with any partner with respect to partnership items for
any partnership taxable year, the Secretary shall offer
to any other partner who so requests settlement terms
for the partnership taxable year which are consistent
with those contained in such settlement agreement
[consistent settlement offer]. * * *

Under section 6224(c)(2), respondent was under no obligation to

petitioners until (i) respondent entered into a settlement

agreement with another Jojoba partner for a partnership taxable

year at issue here, and (ii) petitioners requested an offer

consistent with the terms of that settlement agreement. The

parties do not dispute that respondent entered into settlement

agreements with other Jojoba partners for 1982, 1983, 1985, and

1986 in July or August 1991. The only remaining question is

whether petitioners properly requested a consistent settlement

offer.

Section 301.6224(c)-3T(c), Temporary Proced. & Admin. Regs.,

52 Fed. Reg. 6787 (Mar. 5, 1987), sets forth the proper time and

manner of requesting a consistent settlement. It provides that a
 - 12 -

requesting partner must file his request for a consistent

settlement offer with the Internal Revenue Service office that

entered into the settlement on or before (i) the 150th day after

the day on which the FPAA was mailed to the TMP, or (ii) the 60th

day after the day on which the settlement was entered into,

whichever is later. Id. The settlements occurred in 1991.

Petitioners’ first request for consistent settlement appears to

have been incorporated in the petition in docket No. 16247-99S,

filed with this Court on October 19, 1999. That request was not

made as or when required by section 301.6224(c)-3T(c), Temporary

Proced. & Admin. Regs., supra. Because petitioners failed to

meet the requirements of section 6224(c)(2), respondent was not

obligated to make petitioners a consistent settlement offer.

Petitioners allege that because respondent failed to notify

them of other settlement agreements, they were prevented from

making a proper and timely request under section 6224(c)(2).

Petitioners therefore contend respondent’s failure to so notify

them renders the relief provided in section 6224(c)(2)

meaningless unless respondent is now obligated to extend a

settlement offer consistent with the terms of those prior

settlement agreements. Respondent disagrees, contending that the

Code obligates Jojoba’s TMP, not respondent, to notify

petitioners of any settlement agreement that respondent entered

into with respect to Jojoba. We agree with respondent. As we
 - 13 -

stated in Vulcan Oil Tech. Partners v. Commissioner, 110 T.C.

153, 160 (1998), affd. without published opinion sub nom. Tucek

v. Commissioner, 198 F.3d 259 (10th Cir. 1999), affd. per curiam

without published opinion sub nom. Drake Oil Tech. Partners v.

Commissioner, 211 F.3d 1277 (10th Cir. 2000):

At the time the * * * settlements involved * * *
were entered into, there was no statutory or regulatory
provision that placed on respondent the duty to notify
each partner in a TEFRA partnership that a settlement
was entered into. Rather, section 6223(g) and section
301.6223(g)-1T(b)(1)(iv), Temporary Proced. & Admin.
Regs., 52 Fed. Reg. 6786 (Mar. 5, 1987), placed the
duty on the TMP to keep each partner informed about
settlement offers that had been entered into by
partners. It was the TMP, not respondent, who had the
duty of notification to other investor-partners of the
fact and date that settlements were entered into.

Section 6230(f) provides that a TMP’s failure to notify a

partner or to perform any act on behalf of any partner, as

required by either the statute or the regulations, does not

affect the applicability of any partnership proceeding or

adjustment to that partner. “Thus, despite the TMP’s alleged

failure to provide notice to movants of cash settlements * * *,

movants herein have no right now to require respondent to enter

into cash settlements.” Vulcan Oil Tech. Partners v.

Commissioner, supra at 161.

We hold that, under the circumstances of these cases,

respondent is not obligated to extend to petitioners an offer of

settlement consistent with the terms of settlement agreements

made with other Jojoba partners. See secs. 6223(g), 6224(c)(2);
 - 14 -

sec. 301.6223(g)-1T(b)(1)(iv), Temporary Proced. & Admin. Regs.,

52 Fed. Reg. 6786 (Mar. 5, 1987); sec. 301.6224(c)-3T(c),

Temporary Proced. & Admin. Regs., supra.

II. Additions To Tax Under Section 6653(a)

The second issue we must address is whether petitioners are

liable for additions to tax for negligence for the taxable years

before us.

Petitioners’ underpayments for the taxable years were fixed

in conjunction with Jojoba’s stipulation to be bound to our

decision in Utah Jojoba I Research v. Commissioner, T.C. Memo.

1998-6. Section 6653 provides, in relevant part, that if any

part of any underpayment is due to negligence, there shall be

added to the tax (1) an amount equal to 5 percent of the

underpayment and (2) an amount equal to 50 percent of the

interest payable under section 6601 with respect to the portion

of such underpayment which is attributable to negligence and for

the period beginning on the last date prescribed by law for

payment of such underpayment and ending on the date of the

assessment of the tax. Sec. 6653(a)(1) and (2) (for taxable

years 1982, 1983, and 1985); sec. 6653(a)(1)(A) and (B) (for

taxable year 1986). Respondent determined that all of

petitioners’ underpayments were attributable to negligence.

Petitioners contend they reasonably relied on professionals,
 - 15 -

sufficiently investigated the investment, and otherwise acted

reasonably regarding their reporting positions.

For purposes of section 6653, negligence is defined as “lack

of due care or failure to do what a reasonable and ordinarily

prudent person would do under the circumstances.” Neely v.

Commissioner, 85 T.C. 934, 947 (1985) (quoting Marcello v.

Commissioner, 380 F.2d 499, 506 (5th Cir. 1967), affg. in part

and remanding in part 43 T.C. 168 (1964)); see Allen v.

Commissioner, 925 F.2d 348, 353 (9th Cir. 1991), affg. 92 T.C. 1

(1989); Zmuda v. Commissioner, 731 F.2d 1417, 1422 (9th Cir.

1984), affg. 79 T.C. 714 (1982). Negligence is determined by

testing a taxpayer’s conduct against that of a reasonable,

prudent person. Zmuda v. Commissioner, supra.

The Commissioner’s decision to impose the negligence penalty

is presumptively correct. Collins v. Commissioner, 857 F.2d

1383, 1386 (9th Cir. 1988), affg. Dister v. Commissioner, T.C.

Memo. 1987-217; Hansen v. Commissioner, 820 F.2d 1464, 1469 (9th

Cir. 1987). Petitioners have the burden of proving that the

respondent’s determination is erroneous and that they did what

reasonably prudent people would have done under the

circumstances. Rule 142(a); Hansen v. Commissioner, supra; Hall

v. Commissioner, 729 F.2d 632, 635 (9th Cir. 1984), affg. T.C.

Memo. 1982-337; Bixby v. Commissioner, 58 T.C. 757, 791 (1972).
 - 16 -

Petitioners contend their underpayments are not due to

negligence because they reasonably relied on the advice of Mr.

Matsuda, whom they portray as a trusted professional and friend

with a good reputation throughout the community. It is well

settled that, although taxpayers may avoid liability for the

additions to tax under section 6653(a) if they reasonably relied

in good faith on a competent professional, United States v.

Boyle, 469 U.S. 241, 250-251 (1985), “Reliance on professional

advice, standing alone, is not an absolute defense to negligence,

but rather a factor to be considered”, Freytag v. Commissioner,

89 T.C. 849, 888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990),

affd. 501 U.S. 868 (1991). In order to successfully claim they

reasonably relied on professional advice, petitioners must

demonstrate that the professional on whom they relied had

sufficient expertise and knowledge of the pertinent facts to

provide informed advice on the subject matter. Id.; Becker v.

Commissioner, T.C. Memo. 1996-538; Sacks v. Commissioner, T.C.

Memo. 1994-217, affd. 82 F.3d 918 (9th Cir. 1996); Kozlowski v.

Commissioner, T.C. Memo. 1993-430, affd. without published

opinion 70 F.3d 1279 (9th Cir. 1995).

Petitioners have not pointed to any advice the Myerses

received from Mr. Matsuda relevant to their reporting positions

in the taxable years before us. In 1981, Mr. Matsuda examined

the Myerses’ financial situation and determined they needed to
 - 17 -

better plan for retirement. Although Mr. Myers attended Mr.

Matsuda’s seminar on Jojoba, or otherwise spoke with Mr. Matsuda

regarding an investment in Jojoba, Mr. Myers indicated on his

offeree questionnaire that he did not intend to rely on anyone’s

advice in evaluating the merits and risks of the investment.

Petitioner did not attend a seminar or otherwise speak with Mr.

Matsuda regarding Jojoba; she spoke only with Mr. Myers.6 We see

no basis for petitioners’ claim that the Myerses relied on

professional advice.

Furthermore, petitioners have not demonstrated that Mr.

Matsuda had sufficient expertise and knowledge of the pertinent

facts to provide informed advice on the subject matter. Although

Mr. Matsuda was a certified financial planner, petitioners did

not prove that Mr. Matsuda had expertise or knowledge regarding

jojoba or could provide informed advice on the Jojoba investment

or the tax consequences thereof.

Lastly, petitioners have failed to convince us that the

Myerses reasonably relied on any advice Mr. Matsuda may have

offered. The Myerses knew Mr. Matsuda was compensated for

6
After Mr. Myers’s death, petitioner spoke with the estate’s
probate attorney regarding the promissory note but never
discussed the tax consequences or any other Jojoba matter with
him. Discussions she may have had with Mr. Myers’s stepmother
were more for a basic understanding of tax than about Jojoba or
its tax consequences. Petitioners do not contend they reasonably
relied on the estate’s probate attorney or Mr. Myers’s
stepmother.
 - 18 -

selling and managing interests in Jojoba, yet they did not

endeavor to independently examine or monitor this investment or

otherwise seek independent advice regarding the tax consequences

of their investment. It is unreasonable to make investment

decisions based solely on the advice of an interested party.

Hill v. Commissioner, T.C. Memo. 1993-454. The Myerses neglected

to seek any independent advice although the offeree

questionnaire, subscription agreement, and PPM repeatedly urged

petitioners to do so and were replete with warnings of the risks

associated with the investment and its tax consequences.

Petitioners have not demonstrated that the Myerses exercised

reasonable care in deciding whether to invest in Jojoba and how

to report the tax consequences of that investment or that they

reasonably relied on Mr. Matsuda’s advice regarding the Jojoba

investment. Accordingly, we hold that petitioners are liable for

the additions to tax for negligence under section 6653(a) with

respect to the underpayments for the taxable years before us.

III. Conclusion

We have carefully considered all remaining arguments made by

petitioners for contrary holdings and, to the extent not

discussed, conclude they are irrelevant or without merit.
 - 19 -

To reflect the foregoing,

Decisions will be entered

under Rule 155.