Patrick S. Elliott and Donna J. Elliott - Page 10




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          had not been included in the gross income and/or used in the                
          computation of petitioners’ respective taxable income.                      
               In his determination, respondent increased petitioners’                
          gross income by the amount of the compensation that had been                
          reflected on the Forms 2106.  In an attempt to negate                       
          respondent’s income-side determination, petitioners have argued             
          that, without an explicit expense determination by respondent,              
          petitioners’ reported positions would remain unchanged.                     
          Petitioners make that argument in spite of the undisputed fact              
          that their employee expenses were not allowable in offset of                
          gross income.6  Petitioners have attempted an end run around the            
          error in their reporting position by arguing that they have                 
          already included the Form 1099-MISC compensation in gross income            
          by reflecting it on the Forms 2106 and that respondent’s                    
          determination is a duplication.  Petitioners’ duplication                   
          argument is circuitous and obviously begs the question.  Because            
          petitioners used the expenses for direct offset, the compensation           
          was not included in the gross income petitioners used in                    
          computing their tax liabilities.                                            
               Section 6212 authorizes the Commissioner to determine a tax            
          deficiency.  Petitioners argue that any failure to make such a              
          determination results in a lack of our subject-matter                       



               6 If allowable, the expenses would have been deductible from           
          AGI and subject to sec. 67 and other limitations.                           





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