Mortimer Z. Landsberg, Proprietor - Page 4




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          Subject to irrelevant exclusions, self-employment income means              
          net earnings from self-employment.  See sec. 1402(b).  Net                  
          earnings from self-employment generally include gross income                
          derived from any trade or business carried on by the individual,            
          less allowable deductions attributable to such a trade or                   
          business.  See sec. 1402(a).  However, in a community property              
          State, if any of the income derived from a trade or business is             
          community property under that State’s community property laws,              
          “all of the gross income and deductions attributable to such                
          trade or business shall be treated as the gross income and                  
          deductions of the husband unless the wife exercises substantially           
          all of the management and control of such trade or business”.               
          Sec. 1402(a)(5)(A).                                                         
               Respondent points out that Ms. McGowan did not exercise any            
          management or control over petitioner’s business during the year            
          in issue, and argues that pursuant to section 1402(a)(5)(A),                
          petitioner’s 1995 self-employment tax liability is computed                 
          without taking into account the community property laws of                  
          California.                                                                 
               According to petitioner, section 1402(a)(5)(A) does not                
          apply because it “only serves as a protection to taxpayers who,             
          in the absence of such provision, could be subject to double the            
          amount of self-employment tax intended by Congress.”  In effect,            
          petitioner argues that in the case of a taxpayer subject to                 






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