Patrick S. Elliott and Donna J. Elliott - Page 16




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          Respondent also increased income by the amounts of the excess               
          expenses claimed on the Schedules A, which respondent disallowed            
          for lack of a showing that the expenses were ordinary and                   
          necessary or that they were expended for the stated purpose.  If            
          respondent had specifically and expressly “disallowed” the                  
          offsetting expenses as petitioners suggest, the disallowance                
          would not have resulted in any increase or decrease in the                  
          amounts of the deficiencies determined.  Finally, because                   
          respondent included the unreduced amounts of the Form 1099-MISC             
          compensation in income, petitioners would be able to comprehend             
          that respondent was giving no effect to the expense setoffs.9               
               In a recent case, we considered whether the Commissioner’s             
          position was new matter in the context of section 7522.  Shea v.            



               9 Petitioners’ arguments herein make it obvious that they              
          were aware that the expenses that they had offset against the               
          income on the Forms 2106 were not being given any effect because            
          of the resultant income tax deficiency.  If petitioners had                 
          chosen to give them effect, they would have had to assert and               
          prove their entitlement to the expenses.  If petitioners had been           
          successful in showing their entitlement to the expenses, they               
          would not have been entitled to deduct them from or offset them             
          against gross income, as they attempted to do on the Forms 2106.            
          The expenses would have been deductible on Schedule A and subject           
          to various limitations that would result in reduced amounts’                
          being allowable.  We also note that petitioners deducted the                
          excess by which the expenses exceeded the Forms 1099-MISC                   
          compensation on their  Schedules A.  Petitioners, however, did              
          not follow that route and instead chose to wage a collateral                
          attack on respondent’s determination.  In that regard,                      
          petitioners did not question respondent’s determination that they           
          had not shown that such expenses claimed on the Schedules A were            
          not ordinary and necessary and/or that they were expended for the           
          stated purpose.                                                             





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