Sharon Lee Bartlett, F.K.A. Heitzman - Page 27

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          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).]                                                  





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