Ricky Schmidt and Suzetta J. Schmidt - Page 12

                                       - 12 -                                         
                                        11/30/95   11/30/96   11/30/97                
               Food & lodging1          $13,470    $15,722    $15,272                 
               Medical                  2,052      3,264      3,571                   
               Total dividends          15,522     18,986     18,843                  
               1The record does not explain why the amounts of                        
               dividends for food and lodging expenses included in the                
               Schmidts’ income exceed the amounts disallowed as                      
               deductions to Hillside Dairy.                                          
                                       OPINION                                        
          Issue 1. Expenses Incurred by Hillside Dairy To Provide Medical             
                    Benefits, Food, and Housing to the Schmidts in 1995,              
                    1996, and 1997                                                    
          A.   Positions of the Parties6                                              
               Respondent disallowed deductions taken by Hillside Dairy for           
          medical costs (health insurance premiums and other medical care             
          expenses), food, lodging (including property insurance, property            
          taxes, and utilities for the farmhouse), and depreciation of the            
          farmhouse.  Respondent asserts that the medical costs, food, and            
          lodging expenses are the Schmidts’ personal, family, and living             

               6Under certain circumstances, sec. 7491 places the burden of           
          proof or production on the Commissioner.  Sec. 7491 applies to              
          court proceedings arising in connection with tax examinations               
          beginning after July 22, 1998.  Internal Revenue Service                    
          Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.                 
          3001(a), 112 Stat. 726.  Petitioners timely filed their returns             
          for the years at issue.  Hence, all of the returns were filed on            
          or before Apr. 15, 1998.  The record does not disclose when the             
          examination of petitioners’ tax returns began, and it is possible           
          that the examination began before July 23, 1998.  Petitioners do            
          not contend that sec. 7491 applies in these cases, and they have            
          not otherwise asserted that respondent has the burden of proof or           
          production with respect to any issue presented in these cases.              
          We therefore conclude that sec. 7491 does not apply, and                    
          petitioners have the burden of proof and production.                        





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