Richard K. and Christine M. McGirl - Page 25

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          Generally, there is no deduction for the purchase of equipment.             
          On a timely filed tax return, subject to limitations, a taxpayer            
          can elect to treat the cost of section 179 property as an                   
          expense.  To avail oneself of the benefits of section 179, the              
          taxpayer must make an irrevocable election on the tax return.               
          Sec. 179(a), (c).  Petitioners made no such election.  In order             
          to depreciate an asset, there must be evidence that it was put              
          into service during the year in question for use in a trade or              
          business.  Petitioners offered no such evidence.                            
               Although the Yogurt Station's tax returns had no deduction             
          for auction expenses,13 petitioners seek to deduct checks made              
          payable to cash under this category.  Petitioners have not met              
          their burden of showing that this side business existed.                    
               After carefully reviewing the 1989, 1990, and 1991 check               
          spreads, based on the observations made above, we conclude that             
          they are unreliable as substantiation for additional expenses.              
          Based on the record as a whole, and as discussed below, we find             
          that petitioners' testimony lacks credibility.  The check spreads           
          are simply too little, too late.  In fact, were we to rely on               
          them, we would allow petitioners fewer total deductions than                
          respondent has already allowed in her notice of deficiency.  We             
          find insufficient evidence in the record to justify allowance of            
          any deductions in excess of those claimed on the Yogurt Station's           


          13  The store's returns made no mention at all of an auction                
          (sale of used restaurant equipment) business.                               



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