Rogelio R. Balot and Zenaida V. Balot - Page 36




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               Thirdly, from the testimony of the IRS revenue agent and               
          from petitioners’ trial memorandum it appears that, during the              
          years in issue, petitioners went to Atlantic City, New Jersey,              
          “about 4-5 times a year”, and that they gambled while in Atlantic           
          City.  Petitioners did not report gambling winnings and did not             
          deduct gambling losses.  Since 1934, the Federal tax laws have              
          required that nonbusiness gamblers--petitioners strenuously                 
          insist that they are not in the business of being gamblers--must            
          report their winnings “above the line” and may deduct their                 
          losses only “below the line”.  See discussion in Gajewski v.                
          Commissioner, 84 T.C. at 982-983.  This bifurcation of gambling             
          winnings, and losses for nonbusiness gamblers has been mandated             
          even when it is clear that the taxpayers’ losses exceed their               
          winnings and they are not entitled to itemize their deductions--            
          in effect, taxing the nonbusiness taxpayers on their gross                  
          winnings.  See Johnston v. Commissioner, 25 T.C. 106 (1955).                
          Thus, petitioners’ acknowledgment that they did some nonbusiness            
          gambling in each of the years in issue is another basis for the             
          IRS revenue agent’s belief that petitioners may have some                   
          unreported income that may be reconstructed by the bank deposits            
          method.                                                                     
               Accordingly, we conclude that respondent was justified in              
          using the bank deposits method to reconstruct petitioners’                  
          income.                                                                     






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