The opinion
Withey, J., dissenting: I must dissent from the opinion of the majority insofar as it holds petitioner is not liable for the addition to tax provided by section 291(a) of the Internal Eevenue Code of 1939 for the taxable year ended May 31,1954. The holding is based upon an ultimate finding of fact which I do not feel is sustained by the record. Whatever the experience of the accountant who prepared its income tax return, his statement that “he thought that the personal holding company tax related to individuals in the motion picture industry and individuals with large incomes who wanted to incorporate” makes it clear that he was incompetent and inexperienced to a point where reliance upon him was certainly neglectful and unjustified. The taxpayer failed completely to show that it knew of or relied upon any more of the accountant’s experience in any Federal tax matter than he had obtained through preparing former returns for petitioner. Taxpayer’s very failure to file a personal holding company return is attributable to the accountant’s incompetency and inexperience with the natural result that there never was any discussion between them as to whether petitioner was such a company even though the income tax return clearly gave grounds for such a discussion.
I do not believe a taxpayer is entitled to abrogate his responsibility to file a personal holding company return and be free from liability for the addition to tax merely because he has transferred that responsibility to one who has prepared other returns for him. So far as I can see that is what occurred here.
Tietjens, /., agrees with this dissent.