Marvin L. Barmes and Barbara J. Barmes - Page 77




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               The record before us establishes that throughout 1995,                 
          including the period after the creation of Sandbar Wholesale                
          Trust, petitioners operated, controlled the operations of, and              
          controlled Barbara’s Gift Shop and Barmes Wholesale.  On that               
          record, we find that throughout 1995 petitioners controlled the             
          earning of the income of those two businesses.  Consequently,               
          regardless of whether petitioners transferred the two businesses            
          and/or the properties of those businesses to Sandbar Wholesale              
          Trust after it was created, on the instant record, petitioners              
          are taxable under the assignment of income doctrine on the                  
          unreported 1995 Schedule C gross receipts at issue in this case.            
          See Lucas v. Earl, 281 U.S. 111 (1930).                                     
               The “first principle of income taxation” is that income must           


               38(...continued)                                                       
          obtained from that office.  That document contained, inter alia,            
          the following statement:  “Trustee(s) have * * * acknowledged the           
          conveyance, delivery and acceptance of certain * * * property               
          listed in Schedule A and Addendum to be held in Trust according             
          to the terms, herein.”  The record does not contain the Schedule            
          A and Addendum to which the document in question referred.  Nor             
          does the record contain any other documents evidencing any                  
          alleged conveyance to Sandbar Wholesale Trust or any other trust            
          documents relating to that trust.   During respondent’s examina-            
          tion of petitioners’ 1995 joint return, petitioners did not                 
          provide respondent’s revenue agent with any trust documents                 
          relating to Sandbar Wholesale Trust.  During the discovery                  
          process in this case, petitioners refused to comply with the                
          Court’s October 13, 2000 Order compelling petitioners to produce            
          to counsel for respondent, inter alia, any trust documents                  
          relating to Sandbar Wholesale Trust that respondent requested in            
          respondent’s request for production of documents.  During the               
          trial in this case, petitioners did not offer any such documents            
          into the record.                                                            





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