Joyce E. & Jerome G. Beery - Page 8

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          Memo. 2003-38 (Beery II).  At issue in Beery II was the propriety           
          of respondent’s decision to proceed with the collection of                  
          Federal income taxes and penalties for the taxable year 1994.               
          This Court issued an opinion in Beery II on February 20, 2003, in           
          which the Court upheld the validity of Beery I, holding that the            
          1975 NOL carryforward expired on December 31, 1980, and that this           
          Court was not required to take any further action to enforce                
          Beery I when the U.S. District Court issued its order lifting the           
          bankruptcy stay.  See id.  Therefore, we find no merit in                   
          petitioners’ argument that Beery I is invalid because this Court            
          entered the decision while the automatic stay provisions of the             
          Bankruptcy Code were in effect.                                             
               We also note that Mr. Beery made no effort at trial to prove           
          the existence or amount of the 1975 NOL carryforward that he                
          alleged was available to petitioners to deduct on their 1998 and            
          1999 returns.  Deductions are a matter of legislative grace, and            
          the taxpayer bears the burden of proving his entitlement to the             
          deduction he claimed.7  Rule 142(a); New Colonial Ice Co. v.                
          Helvering, 292 U.S. 435, 440 (1934); Welch v. Helvering, 290 U.S.           

               7Where the taxpayer produces credible evidence with respect            
          to any factual issue relevant to ascertaining the tax liability             
          of the taxpayer, the burden of proof shifts to the Secretary, but           
          only if the taxpayer has complied with substantiation                       
          requirements, maintained all required records, and has cooperated           
          with reasonable requests by the Secretary for witnesses,                    
          information, documents, meetings, and interviews.  Sec. 7491(a).            
          Petitioners do not contend that sec. 7491(a) applies to this                
          case.                                                                       





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