- 43 - the portion of deficiency for each of the years at issue that is attributable to the unreported embezzlement income. Claimed Deductions In order for a claimed deduction to be a grossly erroneous item under section 6013(e)(1)(B), there must be a "claim of a deduction * * * in an amount for which there is no basis in fact or law." Sec. 6013(e)(2)(B). In Douglas v. Commissioner, 86 T.C. 758, 762-763 (1986), we construed the phrase "no basis in fact or law", as follows: As we read the statute as a whole and its legislative history, a deduction has no basis in fact when the expense for which the deduction is claimed was never, in fact, made. A deduction has no basis in law when the expense, even if made, does not qualify as a de- ductible expense under well-settled legal principles or when no substantial legal argument can be made to support its deductibility. Ordinarily, a deduction having no basis in fact or in law can be described as frivolous, fraudulent, or, to use the word of the committee report, phony. [Fn. ref. omitted.] The mere fact that a deduction is disallowed does not mean that the deduction has no basis in fact or in law within the meaning of section 6013(e)(2)(B). See id. at 763. We are persuaded by the record before us that the deduc- tions for a bad business debt and the legal expenses incurred in an attempt to recover that debt, which were claimed in the 1987 joint return and which petitioner concedes are erroneous, are not frivolous, fraudulent, or phony and that they have some basis in fact and in law within the meaning of section 6013(e)(2)(B). The parties do not dispute that the loan underlying the bad debtPage: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
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