-5- deductions because it had an economic interest in the unusable materials.1 Petitioners rely on the 7-factor test set forth in Parsons v. Smith, 359 U.S. 215 (1959). Respondent argues that petitioners lacked an economic interest in the unusable materials. Respondent asserts that the Parsons test supports his argument. We agree with respondent that GBI is not (and thus petitioners are not) entitled to deduct depletion with respect to the unusable materials. Petitioners, as shareholders of GBI, an S corporation, are permitted to take into account their pro rata shares of GBI’s “items of income * * *, deduction, or credit the separate treatment of which could affect the liability for tax of any shareholder, and * * * nonseparately computed income or loss.” Sec. 1366(a)(1). GBI claimed the depletion deductions as to its excavation activities, and petitioners, in turn, claimed the depletion deductions through the passthrough provision of section 1366(a)(1). A deduction for depletion is a matter of legislative grace, Parsons v. Smith, supra at 219, and petitioners bear the burden of proving that they are entitled to such a deduction.2 Rule 142(a)(1); INDOPCO, Inc. v. 1 Petitioners make no assertion that GBI also had an economic interest in the usable materials. 2 The parties agree that sec. 7491(a), which places the burden of proof on respondent in certain cases, does not apply here. Sec. 7491 applies only to court proceedings arising from (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011