Ashit Valia and Smita Valia - Page 5

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               Of the $100,000 settlement proceeds, Smith Barney sent                 
          Stowell & Friedman, Ltd. a check in the amount of $25,000, which            
          was characterized as payment of attorney’s fees and costs.                  
          Smith Barney also sent, and petitioners received, $60,056.25 of             
          the remaining settlement proceeds.2  Consistent with the release,           
          Smith Barney issued petitioners a Form W-2, Wage and Tax                    
          Statement, for $37,500 and a Form 1099-MISC, Miscellaneous                  
          Income, for $62,500.                                                        
               Petitioners reported $37,500 of the settlement proceeds on             
          their 2001 tax return, an amount corresponding with that reported           
          on the Form W-2.  Petitioners did not report any of the remaining           
          $62,500 in settlement proceeds.  Petitioners contend that they              
          are entitled to exclude the $62,500 reported on the Form 1099-              
          MISC from their gross income for the 2001 taxable year because              
          such amount was for sickness and injuries suffered by petitioner            
          from exposure to second-hand cigarette smoke at Smith Barney.               
          Discussion                                                                  
               Neither of the parties has addressed the applicability of              
          section 7491(a) regarding the burden of proof.  Petitioners have            
          not established that they satisfied the requirements of section             
          7491(a); thus the burden of proof remains with petitioners.                 


               2  Of the remaining $75,000 not sent to petitioners’                   
          attorney, $37,500 was treated as wages subject to withholding               
          taxes for Michigan State income tax of $1,575, Federal income tax           
          $10,500, Social Security tax of $2,325, and Medicare tax of                 
          $543.75.                                                                    




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