David E. Benson - Page 6




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          itemized deductions claimed in the 1999 Schedule A that were not            
          subject to the two-percent floor imposed by section 67(a).                  
               Petitioner included Schedule C, Profit or Loss From Business           
          (1999 Schedule C), as part of his 1999 return.  In that schedule,           
          petitioner showed his “Principal business or profession, includ-            
          ing product or service” as “COMPUTER CONSULTING” and his “Busi-             
          ness name” as “POWERPOINT CONSULTING”.  In the 1999 Schedule C,             
          petitioner showed gross income of $2,000 and claimed total                  
          expenses of $13,563 and a net loss of $11,563.  The claimed total           
          expenses in the 1999 Schedule C included as an expense for “Legal           
          and professional services” $5,000 ($5,000 claimed legal expense)            
          of the $5,500 that petitioner paid to Mr. Christie to represent             
          him in defending against the criminal charges.  In determining              
          the taxable income reported in petitioner’s 1999 return, peti-              
          tioner deducted the total (i.e., $11,563) net loss that peti-               
          tioner claimed in the 1999 Schedule C.                                      
               On August 4, 2005,2 respondent issued to petitioner a notice           
          of deficiency (notice) for his taxable year 1999.  In that                  
          notice, respondent disallowed, inter alia, the $5,000 claimed               
          legal expense in the 1999 Schedule C.  In the notice, respondent            

               2The parties stipulated that respondent issued the notice to           
          petitioner on May 31, 2005.  That stipulation is clearly contrary           
          to the facts that we have found are established by the record,              
          and we shall disregard it.  See Cal-Maine Foods, Inc. v. Commis-            
          sioner, 93 T.C. 181, 195 (1989).  The record establishes, and we            
          have found, that respondent issued the notice to petitioner on              
          Aug. 4, 2005.                                                               






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