- 42 - Whether an expense is for medical care is primarily a question of fact. Levine v. Commissioner, 695 F.2d 57, 59 (2d Cir. 1982), affg. T.C. Memo. 1981-437; Counts v. Commissioner, 42 T.C. 755, 764 (1964); Estate of Smith v. Commissioner, 79 T.C. at 319; sec. 1.213-1(e)(1)(v), Income Tax Regs. For purposes of this case, the factual issues involved are: (1) The portions of the monthly service fees allocable to medical care under the percentage method; and (2) the amounts, if any, that petitioners are entitled to deduct for Mr. Baker’s use of the pool, spa, and exercise facilities. On brief, respondent argues that petitioners have failed to present credible evidence that they are entitled to the amounts of the medical deductions claimed on their returns for the years in issue and that they did not comply with the substantiation, recordkeeping, and cooperation requirements of section 7491(a)(2). However, at trial, respondent specifically stated that petitioners had cooperated and maintained records. Respondent represented to the Court that the only issue under section 7491(a) was whether petitioners had presented credible evidence. We treat respondent’s representation at trial as a 26(...continued) 1998. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3001(c), 112 Stat. 727. Respondent has conceded that the examination in this case commenced after July 22, 1998.Page: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
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