Kin L. Velinsky - Page 13

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               predecessor of * * * [section 61] provided that:  "In                  
               the case of a manufacturing, merchandising, or mining                  
               business, 'gross income' means the total sales, less                   
               cost of goods sold, plus any income from investments                   
               and from incidental income or outside operations."                     
               * * *  Currently, I.R.C. section 61(a)(2) includes                     
               gross income from business as part of gross income, and                
               the regulations thereunder still contain the language                  
               quoted above from the 1939 version of the I.R.C.  See                  
               Treas. Reg. sec. 1.61-3 (1994).  Because the [cost of                  
               goods sold] is subtracted from total sales in arriving                 
               at gross income, it follows that a taxpayer's                          
               overstatement of the [cost of goods sold] on his                       
               income-tax return is an item omitted from gross income.                
               [Lilly v. Internal Revenue Service; supra at 572;                      
               emphasis added.]                                                       

               We regard this statement by the Fourth Circuit as consistent           
          with our conclusion that if items shown as cost of goods sold on            
          a taxpayer's return are disallowed, absent an explanation in the            
          notice of deficiency to the contrary, the disallowance results in           
          an omission from gross income.  We conclude that this case is not           
          distinguishable from prior cases involving a disallowance of                
          claimed cost of goods sold subtracted from gross receipts to                
          arrive at gross income.                                                     
               Petitioner contends that she is also entitled to relief                
          under section 6013(e) with respect to the Schedule C deductions             
          disallowed by respondent.  We disagree with petitioner.  A                  
          deduction having no basis in fact or in law is a deduction that             
          is frivolous, fraudulent, or phony.  Douglas v. Commissioner, 86            
          T.C. 758, 763 (1986).  It is clear that Mr. Velinsky was in the             
          business of band management and had business deductions during              
          the year in issue, but, as in Douglas v. Commissioner, supra, the           




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