- 27 - interest in Stonehurst. Mr. Heitzman deliberately held his interest in Stonehurst as separate property when he had the opportunity to elect to hold his interest as a joint survivorship tenency or tenancy in common. If petitioner and Mr. Heitzman had filed separate returns, Mr. Heitzman would have claimed the deduction on his return, and petitioner would not have been liable for the resulting understatement. Therefore the disallowed deductions were items attributable to Mr. Heitzman. b. Grossly Erroneous Deduction The Code defines a “grossly erroneous” deduction as one having no basis in fact or law. Sec. 6013(e)(2). Neither the Code nor the applicable regulations define “basis in fact or law”. However, Congress did not intend that the innocent spouse defense would allow the putative innocent spouse to escape liability for apparently legitimate claims that are later disallowed. Friedman v. Commissioner, 53 F.3d 523, 529 (2d. Cir. 1995), affg. in part, revg. and remanding in part T.C. Memo. 1993-549. Addressing this issue, we have stated that 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 deductible 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 may be described as frivolous, fraudulent, or * * * phony. [Belk v. Commissioner, 93 T.C. 434, 442 (1989); Douglas v. Commissioner, 86 T.C. 758, 762-763 (1986).]Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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