- 28 - 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 thePage: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
Last modified: May 25, 2011