David A. Popper and Claudette B. Stulz - Page 4




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          wages reported by the Township are includable in petitioners’               
          gross income for the year.                                                  
                                     Discussion                                       
               Petitioners dispute not the receipt of the contested income,           
          but rather its characterization as taxable compensation.  The               
          issue for consideration, therefore, is whether the pay that                 
          petitioner received as a JROTC instructor should be treated as              
          including nontaxable military allowances or whether such pay, as            
          argued by respondent, was entirely taxable compensation for                 
          services rendered.                                                          
               The Commissioner’s deficiency determinations are presumed              
          correct, and taxpayers generally have the burden of proving these           
          determinations are incorrect.  Rule 142(a); Welch v. Helvering,             
          290 U.S. 111, 115 (1933).  Under certain circumstances, however,            
          section 7491(a) may shift the burden to the Commissioner with               
          respect to a factual issue affecting liability for tax.  The                
          material facts in this case, however, are not in dispute.  The              
          case is decided by applying the law to the undisputed facts, and            
          section 7491(a) is inapplicable.                                            
               Gross income means all income from whatever source derived.            
          Sec. 61(a).  Military pay received by members of the Armed Forces           
          is within the scope of section 61(a).  See sec. 1.61-2(a)(1),               
          Income Tax Regs.  Congress may, if it chooses, specifically                 
          exempt certain items from gross income.  See Commissioner v.                







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