Jon D. Dezagottis - Page 5




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                    Merkle.  Furthermore, petitioner is not sure whether he was an                                                                                         
                    employee of Merkle or an independent contractor.                                                                                                       
                              Petitioner did not file his 1994 Federal income tax return                                                                                   
                    by the April 17, 1995, due date.1  Additionally, petitioner did                                                                                        
                    not file for an extension of time to file the 1994 tax return.                                                                                         
                    Petitioner dated his return April 28, 1997.2  Thus, at a minimum,                                                                                      
                    the return was filed more than 2 years after the original due                                                                                          
                    date.                                                                                                                                                  
                              The determinations of the Commissioner in a notice of                                                                                        
                    deficiency are presumed correct, and the burden is on the                                                                                              
                    taxpayer to show that the determinations are incorrect.  Rule                                                                                          
                    142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).3                                                                                                 
                    1.  Unreported Income                                                                                                                                  
                              A taxpayer’s gross income generally includes “all income                                                                                     
                    from whatever source derived”.  Sec. 61(a).  A taxpayer is                                                                                             
                    required to maintain records sufficient to establish the amount                                                                                        



                              1         Individual income tax returns are generally due on Apr.                                                                            
                    15 of each year, but since Apr. 15, 1995, was a Saturday, the due                                                                                      
                    date was extended until Monday, Apr. 17, 1995.                                                                                                         
                              2         The actual date the return was filed is not in the                                                                                 
                    record.  Respondent testified that the return was filed in May                                                                                         
                    1997.                                                                                                                                                  
                              3         Sec. 7491 does not apply in this case to place the                                                                                 
                    burden of proof on respondent because petitioner neither alleged                                                                                       
                    that sec. 7491 was applicable nor established that he fully                                                                                            
                    complied with the substantiation requirements of sec.                                                                                                  
                    7491(a)(2)(A).                                                                                                                                         





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