James O. Jondahl - Page 35

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         portion of the commissions earned by Jondahl Insurance between               
         May and November 1990.  This amount plus the checks issued by Mr.            
         Ihry (totaling $14,962) equal $25,000.  We conclude that capital             
         gain of $14,962 and ordinary income from commissions of $10,038              
         should be included in petitioner’s 1990 income.                              
              Respondent has introduced Farmer’s Mutual policy registers              
         for 1990 and 1991 showing that Jondahl Insurance earned insurance            
         commissions of $12,881.70 in 1990 and $3,141.95 in 1991.                     
         Respondent contends that these amounts are income to petitioner              
         in addition to the $25,000 sale proceeds.  Because respondent                
         asserted an increased deficiency in his amended answer based on              
         the inclusion in income of the insurance commissions, respondent             
         has the burden of proving that petitioner received the                       
         commissions.  See Rule 142(a).                                               
              Respondent does not explain why petitioner would have                   
         received commission income after he sold the business at the end             
         of 1990.  From the record before us, it appears that the                     
         commission amounts listed in the Farmer’s Mutual policy registers            
         may include the amount paid as part of the purchase price                    
         ($10,038), which we have already determined was income to                    
         petitioner.  It is also possible that the additional commissions             
         listed for 1990, to the extent they exceed $10,038 ($2,844), and             
         the $3,141.95 listed for 1991 were received by Mr. Ihry after the            
         business was sold or were part of the purchase price, settled by             






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