Sharon Purcell DiLeonardo - Page 29




                                       - 29 -                                         
          limiting provisions of section 24(a)(5).”7  Pozzo di Borgo v.               
          Commissioner, 23 T.C. at 78.  (Emphasis added.)  The taxpayer               
          failed to establish the factual underpinnings for her contention            
          that some or all of the remaining 36.5136 percent of her                    
          commission payments were not allocable to income or interest                
          wholly exempt from tax, and so we held for the Commissioner.  Id.           
          at 78, 81.8                                                                 
               Thus, the cases that respondent cites to us do not provide             
          any instructions relevant to the instant case.  Respondent has              
          not suggested that the instant case involves any other                      
          consideration, such as capital expenditures, or exempt income,              
          that might require apportionment, and our Findings of Fact                  
          dispose of these theoretical possibilities.                                 


          7    Sec. 24(a)(5), I.R.C. 1939, is the predecessor of sec.                 
          265(a)(1) of present law, relating to disallowance of deductions            
          for expenses allocable to income or interest wholly exempt from             
          income taxes.                                                               
          8    We noted that the taxpayer’s contention as to the commission           
          payments, if proven, would transform that case into an                      
          overpayment–-or refund-–case.  See Pozzo di Borgo v.                        
          Commissioner, 23 T.C. 76 (1954).  For a discussion of the                   
          differences between a taxpayer’s burden in a refund case and that           
          taxpayer’s burden in a deficiency case, see Helvering v. Taylor,            
          293 U.S. 507, 514-516 (1935), affg. Taylor v. Commissioner, 70              
          F.2d 619, 620-621 (2d Cir. 1934).                                           












Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011