Salvatore J. D'Amico and Shirley E. D'Amico - Page 12




                                       - 12 -                                         

                                       OPINION                                        
               Although respondent determined in the notice to increase               
          petitioners’ income by $34,157, respondent concedes in respon-              
          dent’s answering brief that $902 of that amount, which was the              
          cost to the Company of providing medical benefits to Mr. D’Amico            
          under the settlement agreement, is to be excluded from petition-            
          ers’ gross income under section 106(a).  Petitioners bear the               
          burden of showing that respondent erred in determining that the             
          remaining amount, i.e., $33,255, is to be included in their                 
          taxable income for 1994.  See Rule 142(a); Welch v. Helvering,              
          290 U.S. 111, 115 (1933).                                                   
               The total amount of $33,255 that remains in dispute consists           
          of the following two components:  (1) $10,000 that the Company              
          paid Mr. D’Amico during 1994 in consideration for the covenants             
          of secrecy, the release, and the other covenants and obligations            
          to which Mr. D’Amico agreed ($10,000 payment) and (2) $23,255               
          that the Company paid to purchase the leased automobile, the                
          ownership of which it transferred to Mr. D’Amico pursuant to the            
          settlement agreement ($23,255 payment).4  Petitioners rely on               

               4Petitioners advance as an alternative argument for the                
          first time on brief that in the event that the Court were to hold           
          against them under sec. 104(a), the fair market value of the                
          leased automobile, and not the amount that the Company paid to              
          purchase it, should be used in determining the increase in                  
          petitioners’ income for 1994 that is attributable to that                   
          automobile.  In this regard, petitioners contend that the fair              
                                                             (continued...)           





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

Last modified: May 25, 2011