Peter F. & Maureen L. Speltz - Page 10

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          income tax returns for 2000 and 2001, listing their principal               
          business as “child care.”  Petitioners deducted $3,279 as an                
          employee benefit program expense in 2000, including $705.82 for             
          health insurance premiums.  Petitioners deducted $4,539 as an               
          employee benefit program expense in 2001, including $968.06 for             
          health insurance premiums.                                                  
               Respondent disallowed petitioners’ claimed employee benefit            
          program expense deductions because respondent found petitioners             
          failed to establish that the amounts were ordinary and necessary            
          business expenses or that Mr. Speltz was a bona fide employee of            
          the daycare.  Respondent mailed petitioners a deficiency notice             
          on February 23, 2004, and petitioners timely filed a petition.              
                                     Discussion                                       
               We are presented with two issues, the excludability of                 
          medical premiums and reimbursements from petitioners’ gross                 
          income and the deductibility of those same amounts from the                 
          daycare business income.  Regarding the excludability issue, we             
          must determine whether petitioners entered into a valid                     
          arrangement for the payment of health benefits under section                
          105(b) and whether Mr. Speltz was a bona fide employee of the               
          daycare.  Regarding the deductibility issue, we must determine              
          whether the deduction amount was an ordinary and necessary                  
          business expense of the daycare.                                            







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