Delbert L. and Margaret J. Baker - Page 42

                                       - 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.                                                              





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