- 32 -
927-928. We held that the Commissioner failed to carry the
burden of proving an omission of more than 25 percent of the
gross incomes stated in the taxpayers’ tax returns, as follows
(id. at 928, 929):
To satisfy his burden in proving the omission,
respondent must show the amount of gross income stated in
the return and the amount of income properly includable
therein which has been omitted. Elizabeth Bardwell, 38 T.C.
84 (1962), affd. 318 F. 2d 786 (C.A. 10, 1963), and Lois
Seltzer, 21 T.C. 398 (1953). In the instant case respondent
has not shown the amount of gross income stated in the
return. On each of the returns for the years 1958 through
1960 there is reported on Schedule H a net loss figure for
certain partnership income. Respondent has not shown
whether a partnership return was filed for those years and
if so the gross income reported thereon. Under section
6501(e)(1)(A) the term “gross income from a trade or
business” means the amount received or accrued from the
sales of goods or services undiminished by the cost of such
goods or services. Since there is no evidence indicating
the manner in which petitioner arrived at the loss figure
for income from the partnership, there is nothing in the
record to show petitioner’s gross income from the
partnership. Respondent’s Rev. Rul. 55-415, 1955-1 C.B.
412, following his ruling in I.T. 3981, 1949-2 C.B. 78, as
to a partner’s gross income for the purpose of section 251
of the Internal Revenue Code of 1939, provides, and this
Court has recognized, that a partnership return is to be
considered together with an individual return in determining
the total gross income stated in the individual return for
the purpose of determining whether the 6-year statute of
limitations is applicable. Jack Rose, 24 T.C. 755, 768-769
(1955). See also Elliott J. Roschuni, 44 T.C. 80 (1965),
and Genevieve B. Walker, 46 T.C 630, 637-738 (1966).
[Emphasis added.]
We therefore conclude that respondent has failed to
establish that petitioner and Richard omitted from any one
of their joint Federal income tax returns for the years
1958, 1959, and 1960 an amount of gross income properly
includable therein in excess of 25 percent of the amount of
gross income stated in such return and therefore respondent
has failed to show that the 6-year statute is applicable.
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