Fatai O. and Mary King - Page 13




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          rather, were incorrectly reported as $14,067 in rental income in            
          petitioners' amended tax return.14                                          
               In general, section 61(a)(3) requires gains derived from the           
          sale of property to be included in gross income.  Petitioners               
          failed to prove that they reported the $11,667 by incorrectly               
          including it in the $14,067 reported as rental income on their              
          amended return.  Other than Mr. King's testimony that he made a             
          mistake, petitioners offered no evidence or explanation for the             
          difference in the amount realized from the newsstand sale during            
          1994 and the amount included under rental income.  Petitioners              
          offered no evidence that they had a basis in the newsstand other            
          than zero.  Therefore, we uphold respondent's determination that            
          petitioners had additional gross income of $11,667.15                       
               Petitioners stipulated that they received $160 of interest             
          income from Mellon Bank and $67 of interest income from PNC Bank            
          during the taxable year 1994.  Since these amounts were not                 
          reported on their 1994 amended return, we sustain respondent's              
          adjustment increasing petitioners' income by these amounts.                 




               14Petitioners did not report any rental income in their                
          original income tax return.                                                 
               15Petitioners do not argue, nor do they provide sufficient             
          facts to establish, that the gain on the sale of the newsstand              
          qualifies for capital gain treatment, or that the gain would not            
          be subject to recapture under sec. 1245 or 1250.                            





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