Rusty K. London, f.k.a. Irving London - Page 6

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          taxable income for 1976 and 1977 on the income averaging                    
          schedules of the 1978 and 1979 returns are not correct.                     
          Discussion                                                                  
               As applicable for the years in issue, sections 1301 through            
          1305 provided for income averaging.  In order for a taxpayer's              
          liability to be computed under the income averaging provisions,             
          the correct taxable income for the base period years must be                
          determined.  Unser v. Commissioner, 59 T.C. 528 (1973).  The tax            
          years in question are 1980 and 1981.  Thus, the question is                 
          whether petitioner has adequately established his correct taxable           
          income for the years 1976 through 1980.7  In their cross-motions            
          for partial summary judgment, the parties do not disagree as to             
          the evidence that is available, and ask the Court to decide if,             
          based on such evidence (or lack of evidence), petitioner, as a              
          matter of law, qualifies for income averaging.                              
               The only years of base period income put in question by the            
          pending motions are 1976 and 1977.  Since the 1976 and 1977 tax             
          returns, or copies thereof, are not available, petitioner has               
          presented other circumstantial evidence through documents and an            
          affidavit to establish correct taxable income.  Respondent has              

          7  The base years for 1980 are 1976 through 1979.  The base                 
          years for 1981 are 1977 through 1980.  Respondent does not                  
          question the base years 1978 and 1979.  Petitioner's income for             
          1980 is a matter in issue in this proceeding because 1980 was one           
          of the years for which a deficiency was asserted by respondent.             
          Thus, the fact that petitioner's income for that year has yet to            
          be adjudicated is not an obstacle to his claim for income                   
          averaging.  See Ryza v. Commissioner, T.C. Memo. 1977-64.                   




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