Richard D. Waters - Page 7




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               On his 1995 Federal income tax return, petitioner did not              
          include in gross income any of the amounts received by him in               
          settlement of the class action.  Petitioner claimed the standard            
          deduction under section 63(c).  In the notice of deficiency,                
          respondent determined that the entire amount of $52,975 allocated           
          to petitioner in the settlement constituted gross income and that           
          petitioner was entitled to an itemized deduction of $18,292 for             
          the attorney's fees and costs allocable to petitioner.  Because             
          petitioner had claimed the standard deduction, respondent                   
          disallowed the standard deduction and substituted that with an              
          allowed itemized deduction of $18,292.  At trial, respondent                
          conceded that petitioner was entitled to an additional itemized             
          deduction of $2,222 for charitable contributions.  Petitioner               
          conceded that $6,000 of his award as compensation for                       
          participation in the class action constituted gross income.                 
          Petitioner, however, challenged the back pay of $14,116.97 and              
          the liquidated damages of $32,858.21.2                                      
               Petitioner contends that the amount he received in the                 



               2    Petitioner has not challenged respondent's inclusion of           
          the $18,292 for attorney's fees in gross income and allowance of            
          that amount as an itemized deduction.  The $18,292 in attorney's            
          fees is subject to the 2-percent limitation under sec. 67(a).               
          See Miller v. Commissioner, T.C. Memo. 2001-55; Benci-Woodward v.           
          Commissioner, 219 F.3d 941 (9th Cir. 2000).                                 






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