Augustin B. Jombo - Page 12





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          E.   Whether Petitioner’s 1996 NYSL Payment Is Excluded From                
               Gross Income as an Annuity Under Section 72(b)(1)                      
               Petitioner contends that he may exclude the 1996 NYSL                  
          payment from income as an annuity under section 72(b)(1).5                  
          We disagree.                                                                
               Gross income generally includes any amount received as an              
          annuity.  Sec. 72(a).  However, amounts attributable to the                 
          taxpayer’s investment in the annuity contract are excludable.               
          Sec. 72(b)(1).  Petitioner paid $1 for the winning lottery                  
          ticket.  Thus, petitioner may exclude at most $1.  Id.  We                  
          conclude that petitioner may not exclude the 1996 NYSL payment              
          from income under section 72(b)(1).                                         
          F.   Whether Petitioner Had a $4,237 Net Operating Loss Carryover           
               for 1996                                                               
               Petitioner contends that he may carry over to 1996 a $4,237            
          net operating loss which resulted from investment losses from his           
          rental property in previous years.  We disagree.                            
               Petitioner reported in a statement attached to his 1996                
          return that he had a $4,237 net operating loss carryover.6  He              


               5  Sec. 72(b) provides in part:                                        
               (1) In general.--Gross income does not include that part of            
          any amount received as an annuity under an annuity, endowment, or           
          life insurance contract which bears the same ratio to such amount           
          as the investment in the contract (as of the annuity starting               
          date) bears to the expected return under the contract (as of such           
          date).                                                                      
               6  A tax return is not evidence of the truth of the facts              
                                                             (continued...)           




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