Franklin W. Briggs - Page 38




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         any resulting net operating loss attributable to) any losses                 
         associated with the $460,000 letter of credit payment because:               
         (1) Petitioners failed to substantiate the deduction; and (2) the            
         claimed loss arose from a contingent liability that was not                  
         determined until 1992, when the litigation between Towers                    
         Construction and Key West Polo was concluded.                                
              Cost of goods sold is not a deduction within the meaning of             
         section 162(a) but instead is subtracted from gross receipts in              
         determining a taxpayer’s gross income.  See Max Sobel Wholesale              
         Liquors v. Commissioner, 69 T.C. 477 (1977), affd. 630 F.2d 670              
         (9th Cir. 1980); sec. 1.162-1(a), Income Tax Regs.  Taxpayers                
         must show their entitlement to amounts claimed as cost of goods              
         sold, see Rule 142(a), and must keep sufficient records to                   
         substantiate the cost of goods sold, see sec. 6001; Newman v.                
         Commissioner, T.C. Memo. 2000-345.                                           
             Petitioners have failed to document Towers Construction’s               
         gross sales or to substantiate any expenses or costs relating to             
         any gross sales.  Accordingly, petitioners have failed to                    
         establish that Towers Construction is entitled to claim cost of              
         goods sold or, if it is, what the proper amount of cost of goods             
         sold might be.                                                               
              Petitioners have also failed to establish that the amount in            
         dispute is allowable as an ordinary and necessary business                   
         expense under section 162(a).  Pursuant to the letter of credit,             






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