Pansy V. Panages - Page 7

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          investments and rent does not in and of itself bar her from being           
          a professional gambler.  Petitioner, however, does not qualify as           
          a professional gambler because her situation does not satisfy the           
          test laid out by the Supreme Court.  In Commissioner v.                     
          Groetzinger, supra at 33, the Court stated that, if a taxpayer              
          “devotes his full-time activity to gambling, and it is his                  
          intended livelihood source, it would seem that basic concepts of            
          fairness * * * demand that his activity be regarded as a trade or           
          business”.  Petitioner’s livelihood was not her winnings from               
          slot machines; instead, her primary income came from her flower             
          shop.  Her gambling was not a trade or business under section               
          162.  Consequently, petitioner may not deduct her losses on a               
          Schedule C but must itemize them.3                                          
               Respondent determined a section 6662(a) penalty of $1,232              
          against petitioner.  Section 6662(a) provides for a 20-percent              
          addition to tax for any underpayment to which the section                   
          applies.  Respondent determined that section 6662(b) applies to             


               3    If petitioner qualified as a professional gambler for             
          purposes of sec. 162, she still could claim her losses only to              
          the extent she had gains.  Sec. 165(d); Praytor v. Commissioner,            
          T.C. Memo. 2000-282.  Because petitioner does not qualify as a              
          professional gambler, it is not necessary to address whether                
          petitioner may deduct ATM charges and tips to grocery store                 
          employees as expenses because her slot machine losses alone                 
          exceeded her winnings; therefore, she may not deduct the charges            
          or tips.  In the notice of deficiency, respondent disallowed all            
          of petitioner’s claimed deductions for gambling losses and other            
          expenses in excess of gambling income.  That computation is                 
          sustained by the Court.                                                     





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