Rosemarie Meyer - Page 10

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          ordinarily would lie) substantially aid the Court.  Friedman v.             
          Commissioner, supra; Hayman v. Commissioner, supra.                         
          Issue 1.  Whether the Understatement Was Attributable to Grossly            
          Erroneous Items of Petitioner's Husband Alone                               
               Mrs. Meyer has failed to prove by a preponderance of the               
          evidence that a substantial understatement of tax exists that is            
          attributable to grossly erroneous items of her husband alone for            
          any of the items respondent raised in the notice of deficiency.             
          The items remaining for discussion concern the omission from                
          income of the $180,748 constructive dividend, as well as the                
          disallowed $19,753 Schedule C expense.                                      
               The term "grossly erroneous items" is defined by section               
          6013(e)(2) as "(A) any item of gross income attributable to such            
          [culpable] spouse which is omitted from gross income, and (B) any           
          claim of a deduction, credit, or basis by such spouse in an                 
          amount for which there is no basis in fact or law."  Whether a              
          claim is grossly erroneous must be evaluated as of the time of              
          filing of the tax return.  Friedman v. Commissioner, supra at               
          529.                                                                        
               A.  The Constructive Dividend                                          
               Omitted income items are automatically grossly erroneous if            
          solely attributable to the culpable spouse.  Sec. 6013(e)(2)(A).            
          Although petitioner's husband organized and owned AED entirely,             
          Mrs. Meyer had access to, and use of, the funds held in this                
          entity's name.  In fact, respondent's determination of the                  





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