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with respect to the $1,566 real estate commission earned in 1992.
Because the notice of deficiency included half the real estate
commission income earned during 1990, 1991, and 1993, petitioner
has the burden of proof with respect to half of the real estate
commissions at issue for those years. In his amended answer,
respondent asserted the inclusion of the other half of the real
estate commission amounts for 1990, 1991, and 1993; therefore,
respondent has the burden of proof for half the real estate
commissions for those years.
Petitioner did not present evidence at trial that he and
WFIC executed an employment contract at any time. However, when
petitioner applied for his real estate broker’s license in 1990,
he stated that he would be an “acting broker for a corporation”,
listing WFIC as his employer. Likewise, in correspondence
between petitioner and members of the NDREC, petitioner
acknowledged his relationship with WFIC and sought advice
regarding the proper way to advertise. In addition, petitioner
used WFIC’s trust account to facilitate most of his real estate
transactions.
In 1990 and 1991, all of petitioner’s real estate
transactions were brokered using WFIC’s trust account, and the
commission amounts were transferred to WFIC’s general account at
the conclusion of each transaction. These amounts were reported
on WFIC’s 1990 and 1991 corporate tax returns. Petitioner’s
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