Michael A. McGrath and Frances Y. McGrath - Page 11




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               Petitioners opened the Bakery in December 1995 and operated            
          it until some time in February 1997.  On or about April 7, 1997,            
          petitioners sold the Bakery including the furniture, fixtures,              
          equipment, inventory, and supplies therefor.6                               
          D.  1995 Tax Return                                                         
               Petitioners timely filed their joint 1995 income tax return.           
          On this tax return they claimed a refund in the amount of                   
          $25,658.  They did not elect on this tax return to treat any                
          property they placed in service in 1995 as section 179 property,            
          because they believed such an election would not affect the                 
          amount of the 1995 tax refund to which they were entitled.                  
          E.  1996 Tax Return                                                         
               Petitioners timely filed their joint 1996 income tax return.           
          On this tax return they claimed a refund in the amount of $3,571,           
          of which $3,026 was earned income credit.  They did not elect on            


               5(...continued)                                                        
          with a cost or other basis in the amount of $5,267.  On opening             
          brief, respondent notes this discrepancy and concludes that                 
          petitioners have conceded the $208 differential, but apparently             
          only if petitioners lose on the sec. 179 issue.  On answering               
          brief, petitioners state that “In the respondent’s opening brief,           
          the respondent agrees that the petitioners purchased * * * $5,267           
          of Section 179 equipment in 1996.”                                          
               The parties are to resolve this matter in the proceedings              
          under Rule 155.                                                             

               6  The record does not show whether petitioners claimed as             
          basis in determining their gain or loss on the 1997 sale any                
          amount that they deducted on their 1995 or 1996 tax returns.  The           
          record also does not show what became of the Lease.                         





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