Martin and Suzanne Higbee - Page 9




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          respondent, even if petitioners had offered evidence that the               
          form was mailed, we would be left with the conclusion that the              
          document was lost in transit.  In such a case, it is the taxpayer           
          who bears the risk of nondelivery.  Walden v. Commissioner 90               
          T.C. 947, 951-952 (1988); Smith v. Commissioner, T.C. Memo. 1994-           
          270, affd. without published opinion 81 F.3d 170 (9th Cir. 1996).           
               The Court holds that the preponderance of the evidence                 
          supports respondent's determination that petitioners are not                
          entitled to deduct losses from an S corporation for 1997 and                
          1998.                                                                       
          Operation as a Proprietorship                                               
               Petitioners' primary argument is that the deductions claimed           
          on their returns as losses from an S corporation on Schedules E             
          should really have been reported as business expenses on                    
          Schedules C.  They argue that Cactus Quail was not a corporation            
          at all during the years at issue and that the bed and breakfast             
          expenses were therefore incurred by and are deductible by them              
          personally.                                                                 
          The Court will assume, without deciding, that petitioners                   
          did operate as a proprietorship during 1997 and 1998 and would be           
          entitled to deduct business expenses on Schedules C.  Deductions,           
          however, are a matter of legislative grace, and taxpayers bear              
          the burden of proving their entitlement to any deduction claimed.           
          INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New                  






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