Edward R. Arevalo - Page 11

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          Stat. 727.  Under section 7491, the burden of proof shifts from             
          the taxpayer to the Commissioner if the taxpayer produces                   
          credible evidence with respect to any factual issue relevant to             
          ascertaining the taxpayer’s tax liability.  Sec. 7491(a)(1).                
          However, section 7491(a)(1) applies with respect to an issue only           
          if the taxpayer has complied with the requirements under the Code           
          to substantiate any item, has maintained all records required               
          under the Code, and has cooperated with reasonable requests by              
          the Commissioner for witnesses, information, documents, meetings,           
          and interviews.  See sec. 7491(a)(2)(A) and (B).                            
               Petitioner failed to appear at trial or to produce any                 
          credible evidence.  Petitioner has no records or information as             
          to where the pay phones are located or as to the amount of                  
          revenue that they produced.  Therefore, the burden of proof has             
          not shifted to respondent.  Nonetheless, our findings in this               
          case are based on a preponderance of the evidence.                          
          Depreciation Deduction                                                      
               Section 167(a) allows as a depreciation deduction a                    
          reasonable allowance for the “exhaustion, wear and tear” of                 
          property (1) used in a trade or business or (2) held for the                
          production of income.  Sec. 167(a)(1) and (2).  Depreciation                
          deductions are based on an investment in and actual ownership of            
          property rather than the possession of bare legal title.  See               
          Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 326             






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Last modified: May 25, 2011