James R. & Anita Madler - Page 5

                                                - 5 -                                                   

            Petitioners then fully deducted these losses on line 18 of their                            
            returns (Forms 1040) for each of the years in question.  Only the                           
            portion of the losses attributable to petitioner's condominium                              
            unit remains in issue.  Upon examination, respondent disallowed                             
            the claimed losses, reasoning that petitioner's ownership of the                            
            condominium unit constituted a passive activity for purposes of                             
            section 469, thereby precluding petitioners from offsetting                                 
            losses attributable to the unit against nonpassive income.                                  
            Discussion                                                                                  
                  We begin by noting that petitioners bear the burden of                                
            proving that respondent's determination is erroneous.  Rule                                 
            142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).  This                                 
            burden remains when a case is fully stipulated.  Borchers v.                                
            Commissioner, 95 T.C. 82, 90-91 (1990), affd. 943 F.2d 22 (8th                              
            Cir. 1991).  Moreover, deductions are a matter of legislative                               
            grace, and petitioners bear the burden of proving that they are                             
            entitled to any of the deductions claimed.  INDOPCO, Inc. v.                                
            Commissioner, 503 U.S. 79, 84 (1992).                                                       
                  Section 162 permits deductions for all the ordinary and                               
            necessary expenses paid or incurred during the taxable year in                              
            carrying on a trade or business.  Section 212 permits deductions                            

            3(...continued)                                                                             
            returns are attributable to the condominium unit in question in                             
            addition to property owned by petitioners in Cloudcroft, New                                
            Mexico.  Since there is no allocation on the returns, or                                    
            elsewhere in the record, we have included the entire amounts.                               




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011