Wallace F. and Mi-Ja H. Smith - Page 7




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          Petitioner actually received total distributions from Berkeley              
          during 1997, that were not attributable to after tax employee               
          contributions, of $87,873.49, which exceeds the amount                      
          petitioners included in income by $45,956.49.  In the notice of             
          deficiency, respondent determined that petitioners failed to                
          report $45,955 in "U C Berkeley 1099R (3)" income.  In other                
          words, petitioners failed to include in income a total of $45,955           
          from the three separate retirement distributions from Berkeley.3            
               Section 61(a) provides that gross income includes "all                 
          income from whatever source derived," unless otherwise provided.            
          More specifically, section 61(a)(1), (9), and (11), respectively,           
          provides that gross income includes "compensation for services,             
          including fees, commissions, fringe benefits, and similar items";           
          "annuities"; and "pensions".  A fundamental principle of tax law            
          is that income is taxed to the person who earns it, when he earns           
          it or derives it from property he owns.  Commissioner v.                    
          Culbertson, 337 U.S. 733, 739-740 (1949); Lucas v. Earl, 281 U.S.           
          111 (1930).  Moreover, determining the ownership of property is a           
          question of fact, on which the taxpayer generally has the burden            
          of proof.  Rule 142(a); Hang v. Commissioner, 95 T.C. 74, 80                





               3    The $1.49 difference between the $45,956.49 petitioner            
          received but failed to include in income and the $45,955                    
          determined by respondent is not explained in the record.                    




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