David Andrew and Kathleen Stilwell Schmith - Page 3




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               As explained in detail below, there is no genuine issue as             
          to any material fact, and a decision may be rendered as a matter            
          of law.  Accordingly, we shall grant respondent’s motion for                
          summary judgment.                                                           
          Background                                                                  
               The record establishes and/or the parties do not dispute the           
          following:                                                                  
               A.  Petitioners’ Form 1040 for 1997                                    
               On or about April 14, 1998, David Andrew Schmith and                   
          Kathleen Stilwell Schmith (petitioners), residents of Las Vegas,            
          Nevada, submitted to respondent a Form 1040, U.S. Individual                
          Income Tax Return, for the taxable year 1997.  On the Form 1040,            
          petitioner Kathleen Stilwell Schmith listed her occupation as               
          cashier; in contrast, petitioner David Andrew Schmith did not               
          list his occupation.                                                        
               Petitioners entered zeros on all of the lines of the income            
          portion of the Form 1040, specifically including line 7 for                 
          wages, line 8a for taxable interest, line 13 for capital gain,              
          line 19 for unemployment compensation, line 22 for total income,            
          lines 32 and 33 for adjusted gross income, and line 38 for                  
          taxable income.  Petitioners also entered zeros on line 39 for              
          tax, lines 47 through 52 for other taxes, and line 53 for total             
          tax.  Petitioners then claimed a refund in the amount of $542.81,           
          which was equal to the amount of Federal income tax that had been           






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