Richard William Corduan - Page 14




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          however, are merely statements by petitioner and are not                    
          corroborating evidence.  With no evidence of a net operating loss           
          in 1994, we hold that petitioner is not entitled to a deduction             
          for a net operating loss carryover in any of the years in issue.            
          We also note that nothing in the record indicates petitioner                
          either carried back the loss to prior taxable years or elected to           
          waive the carryback, as required under section 172.                         
               The third issue for decision is whether, and if so to what             
          extent, petitioner must include in income a State income tax                
          refund he received.  Petitioner did not include in income any               
          State tax refund in 1997.  Respondent determined that petitioner            
          received an unreported State income tax refund in that year in              
          the amount of $2,073.                                                       
               Under the judicially created tax benefit doctrine, a                   
          taxpayer generally must include in income the recovery or refund            
          of an amount deducted in a prior year.  See Hillsboro Natl. Bank            
          v. Commissioner, 460 U.S. 370 (1983).  However, a taxpayer is not           
          required to include in income such recovery or refund to the                
          extent that it did not provide the taxpayer with a tax benefit in           
          the prior year.  See id.; sec. 111(a).                                      
               Petitioner claimed an itemized deduction for State and local           
          income taxes in the amount of $1,116 in 1996.  Petitioner must              
          include in gross income in 1997 the State income tax refund                 
          received in that year to the extent he received a tax benefit               






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