Robert Carmelo Torre - Page 4




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               Petitioner claims a casualty loss of $48,890.15.1                      
                                       OPINION                                        
          A.  Long-Term Capital Gain                                                  
               Petitioner’s investment with Fidelity Investments in 1997              
          was in shares of a mutual fund.  The mutual fund’s asset                    
          allocation, as of December 31, 1997, was 33 percent stock, 60               
          percent bonds, and 7 percent short-term securities.  Petitioner             
          argues that because line 5 instructs the taxpayer to include                
          “gross dividends and/or other distributions on stock”, the $5,603           
          long-term capital gain does not belong on line 5 of Schedule B              
          (emphasis added).  Since the distribution in question came from a           
          mutual fund with an asset allocation of 60 percent in bonds,                
          petitioner argues that he need not include on line 5 the amount             
          of the capital gain distribution from shares of this mutual fund.           
               Section 61(a) provides that gross income includes “all                 
          income from whatever source derived,” unless otherwise provided.            
          Section 61(a)(7) specifically provides that dividends are                   
          included in gross income, and section 61(a)(3) provides that                
          gross income includes gains derived from dealings in property.              


               1 This figure represents the net amount claimed after                  
          applying the limitation provisions of sec. 165(h)(1) and (2),               
          which reduces the gross amount claimed, $50,781.23, by $1,891.08.           
          At trial, petitioner claimed that he had made improvements to the           
          house, increasing its adjusted basis from $40,000 to $50,781.23.            
          On Form 4684, Casualties and Thefts, petitioner listed the value            
          of his house before the casualty as $50,781.23, and stated that             
          the value of the house after the casualty was zero, although he             
          sold the house the following year for $39,500.                              





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