Henry A. Rabago - Page 10




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               Based on the facts recited earlier, the Court holds that               
          petitioner was a common-law employee under section 3121(d)(2)               
          and, therefore, was not a statutory employee under section                  
          3121(d)(3).  Respondent is sustained on this issue.                         
               The second issue is petitioner's entitlement to deductions             
          for expenses incurred in connection with his employment, as                 
          itemized deductions, to the extent such expenses exceed 2 percent           
          of his adjusted gross income each year.  Sec. 67(a).                        
               The first item to be considered is the cost of goods sold              
          that petitioner claimed as a reduction of his gross receipts.               
          Petitioner explained at trial that the amounts claimed                      
          represented stale, unsold merchandise he removed from store                 
          shelves.  The Court holds that petitioner is not entitled to such           
          reduction because he had not purchased the products he delivered;           
          consequently, he had no basis in the returned goods.  Although              
          petitioner lost the commissions on the returned goods, the Court            
          concludes from the record that the income amounts shown on the              
          Forms W-2 represented the net commissions paid to petitioner                
          after deducting the forfeited commissions.  Petitioner,                     
          therefore, is not entitled to either a cost of goods sold                   
          adjustment or a deduction for forfeited commissions.                        
               The expenses deducted by petitioner on Schedules C for both            
          years were:                                                                 







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