Robert Griffin and Julia Griffin - Page 2

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          remanding T.C. Memo. 2002-6.  The issue for decision on remand is           
          whether respondent has met his burden of proving that petitioners           
          are not entitled to deduct as business expenses certain real                
          property taxes paid by Mr. Griffin with respect to properties               
          owned by two partnerships in which petitioners’ wholly owned S              
          corporation was a partner.                                                  
               In our original opinion, we sustained respondent’s                     
          determination that petitioners were not entitled to deduct the              
          real property tax payments.  In doing so, we held that the burden           
          of proof was not placed on respondent pursuant to section                   
          7491(a)(1), because we found that petitioners failed to introduce           
          credible evidence that they were engaged, in their individual               
          capacities, in a trade or business for which the tax payments               
          would have represented ordinary and necessary expenses.1  See,              
          e.g., Lohrke v. Commissioner, 48 T.C. 679 (1967).                           
               On appeal, the Court of Appeals for the Eighth Circuit held            
          that petitioners “did produce sufficient ‘credible evidence’ to             
          support their personal deductions of the real property tax                  
          payments at issue.”  Griffin v. Commissioner, supra at 1021.                
          Accordingly, the Court of Appeals held that the burden of proof             
          should be placed on respondent pursuant to section 7491(a)(1) and           
          remanded this case for further consideration on the merits as to            



               1 Unless otherwise indicated, section references are to the            
          Internal Revenue Code as amended.                                           




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