John R. and Lois J. McCarthy - Page 3




                                                - 3 -                                                  
            Character of Income                                                                        
                  Petitioners reported income on the 1993 Schedule C of $198.                          
            This amount is attributable to royalties petitioner received for                           
            consulting work he had performed prior to 1993 for an educational                          
            video.  Petitioner had provided information on anthropology and                            
            agreed to accept as part of his compensation a percentage from                             
            the future sales of the video.                                                             
                  For 1994, petitioner reported Schedule C income of $4,697                            
            consisting of video royalties of $313, $9 for performing                                   
            unspecified research, $2,500 as a refund of legal expenses, and                            
            $1,877 of interest.  Prior to the years at issue, petitioner had                           
            assisted an individual with his invention.  A legal dispute arose                          
            between the parties.  Petitioner retained counsel in 1993 and                              
            paid him an amount in excess of $2,500.  In 1994, the matter more                          
            or less disappeared, and petitioner’s counsel refunded $2,500 to                           
            petitioner.  Petitioner included the $2,500 in Schedule C income                           
            because he had claimed a Schedule C deduction for legal expenses                           
            in 1993.2                                                                                  




                  2  Petitioners claimed a deduction of $4,398 for legal and                           
            professional services on the 1993 Schedule C.  It is not apparent                          
            whether this entire amount was paid to petitioner’s counsel                                
            concerning the invention matter.  Respondent concedes that the                             
            $2,500 is not includable in income in 1994 and the $2,500 is not                           
            a deductible expense for 1993, irrespective of whether we                                  
            determine that petitioner’s activity was not entered into for                              
            profit.                                                                                    





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