Sharon Lee Bartlett, F.K.A. Heitzman - Page 28

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               We inquire first whether the minimum annual royalty and the            
          intangible drilling expense deductions are grossly erroneous as             
          having no basis in fact or law because they arose from a sham               
          transaction entered into solely for the purpose of obtaining                
          favorable tax consequences.  Sham transactions are not given                
          effect for Federal income tax purposes, Frank Lyon Co. v. United            
          States, 435 U.S. 561, 573 (1978); Ferrell v. Commissioner, 90               
          T.C. 1154, 1199 (1988), and  the claimed deductions arising                 
          therefrom are “phony” or “frivolous”, without basis in fact or              
          law, and therefore grossly erroneous under section 6013(e)(2),              
          even if an expense or loss is actually incurred.  See, e.g.,                
          Bouskos v. Commissioner, T.C. Memo. 1987-574 (deductions arising            
          from coal-mining lease that was “a mere tax shelter designed to             
          enrich the general partners and provide sizable tax deductions to           
          the limited partners” were phony and had no basis in law or fact)           
          (quoting Tallal v. Commissioner, T.C. Memo. 1984-486, affd. 778             
          F.2d 275 (5th Cir. 1985)); cf. Somervill v. Commissioner, T.C.              
          Memo. 1996-165 (claimed deductions in tax shelter that was a sham           
          were not grossly erroneous because they were “not without some              
          support in the case law”) (quoting Finkelman v. Commissioner,               
          T.C. Memo. 1989-72, affd. without published opinion 937 F.2d 612            
          (9th Cir. 1991)).                                                           
               The putative innocent spouse must carry the burden of                  
          producing evidence of the sham nature of the underlying                     
          transaction and the lack of profit motive on the part of the                



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