Ronald J. Lutz, Jr. and Paula M. Lutz - Page 9




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          Internal Revenue Code, the taxpayer is required to maintain                 
          records that are sufficient to enable the Commissioner to                   
          determine the correct tax liability.  See sec. 6001; sec. 1.6001-           
          1(a), Income Tax Regs.; see also Rev. Proc. 77-29, 1977-2 C.B.              
          538 (providing guidance as to acceptable evidence for                       
          substantiating wagering wins and losses).  Here, petitioners do             
          not dispute that they failed to maintain records of their                   
          gambling activities.  Accordingly, the burden of proof as to                
          petitioners’ gambling losses is not placed on respondent, and               
          petitioners bear the burden of substantiating the amount of any             
          claimed gambling loss deduction.  See Hradesky v. Commissioner,             
          65 T.C. 87, 90 (1975), affd. 540 F.2d 821 (5th Cir. 1976).                  
               Moreover, as discussed in greater detail below, although               
          petitioners have introduced evidence substantiating some losses–-           
          and respondent has conceded some losses--petitioners have failed            
          to introduce credible evidence, as required by section 7491(a),             



               7(...continued)                                                        
          petitioners fail this requirement, having failed to produce any             
          documents to substantiate their gambling winnings and losses                
          after receiving from respondent a December 1998 letter regarding            
          the examination of their 1996 Federal tax liabilities.  Because             
          we conclude that petitioners have failed the substantiation and             
          record-keeping requirements of sec. 7491(a)(2)(A) and (B), we               
          need not decide whether petitioners also fail the cooperation               
          test.                                                                       
               The benefits of sec. 7491 are also unavailable if the                  
          taxpayer fails certain net-worth limitations.  See sec.                     
          7491(a)(2)(C).  Respondent does not argue that petitioners fail             
          the net-worth limitations.                                                  





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