Irwin and Jeannine Radnitz - Page 11




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               In addition to the rent and utilities expenses, petitioners            
          deducted expenses for furnishing the North Indian Avenue and                
          Ravenspur apartments during 1998 totaling $1,371.  In the notice            
          of deficiency, respondent disallowed the $1,371 on the ground               
          that, although substantiated, the claimed amount did not                    
          constitute deductible ordinary and necessary business expenses.             
               The Court first addresses petitioners’ entitlement to the              
          deductions claimed for 1997 and 1998 relating to their residences           
          (Vista Loma and Deepak) and next considers the deductions claimed           
          for 1998 relating to the two rented apartments (North Indian                
          Avenue and Ravenspur).5                                                     
               Under section 162(a), a taxpayer is allowed to deduct all              
          ordinary and necessary expenses paid or incurred in carrying on a           
          trade or business.  However, section 280A(a) generally disallows            
          deductions with respect to the use of a dwelling unit that is               
          used by a taxpayer as a residence during the taxable year, with             
          certain exceptions.  One of those exceptions applies to use of a            
          home office.  The home office exception, sec. 280A(c), provides:            


               5    Generally, the burden of proof is on a taxpayer to                
          establish entitlement to deductions, which are a matter of                  
          legislative grace.  New Colonial Ice Co. v. Helvering, 292 U.S.             
          435, 440 (1934).  In certain circumstances, however, sec. 7491              
          shifts this burden of proof with respect to examinations of                 
          returns commencing after July 22, 1998.  There is no evidence in            
          the record regarding the date the examination of petitioners’               
          returns commenced, and petitioners do not contend that sec. 7491            
          applies.  In any event, the Court decides this case without                 
          regard to the burden of proof.                                              




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