Richard S. Cotler - Page 9




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          liability is properly at issue, we review that issue de novo.               
          Sego v. Commissioner, supra at 610; Goza v. Commissioner, supra             
          at 181.  If the validity of the underlying tax liability is not             
          at issue, we review the Commissioner’s determination for abuse of           
          discretion.  Sego v. Commissioner, supra at 610.  Mr. Cotler did            
          not receive a notice of deficiency for 1997 or for 1998, he                 
          raised his underlying liability at the section 6330 hearing, and            
          he is entitled to contest the underlying tax liability for 1997             
          and 1998.4  Montgomery v. Commissioner, 122 T.C. 1, 5 (2004).               
          II.  Disability Benefits                                                    
               Mr. Cotler argues that the disability benefits that he                 
          received in 1997 and 1998 are excludable from gross income                  
          pursuant to section 104(a)(3).  Respondent determined that the              
          amounts are not excluded from gross income.                                 
               Gross income includes income from whatever source derived.             
          Sec. 61(a).  Gross income, however, does not include amounts                
          received through accident and health insurance for personal                 
          injuries or sickness other than amounts received by an employee,            
          to the extent such amounts:  (1) Are attributable to                        
          contributions by the employer which were not includable in the              
          gross income of the employee, or (2) are paid by the employer.              
          Sec. 104(a)(3); see also Tuka v. Commissioner, 120 T.C. 1 (2003),           


               4  Respondent does not argue that Mr. Cotler is precluded              
          from challenging his underlying liability.                                  






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