Joseph D. & Elizabeth M. Dunne - Page 40




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          and we find respondent did not abuse his discretion in denying              
          Mrs. Dunne such relief.                                                     
          IV.  Whether Petitioners May Claim $20,000 of Legal Expenses That           
               They Incurred in 1999 as Trade or Business Expenses                    
               In the notice of deficiency respondent disallowed a                    
          deduction for $20,000 that petitioners listed on their Schedule C           
          as a business expense but added the $20,000 deduction to their              
          Schedule A as a miscellaneous itemized expense.  If the $20,000             
          is deductible on petitioners’ Schedule C, then it is not subject            
          to the 2-percent floor generally applicable to miscellaneous                
          itemized deductions under section 67.                                       
               Deductions are a matter of legislative grace, and taxpayers            
          bear the burden of proving entitlement to the deductions claimed.           
          Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84                 
          (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440                
          (1934).  In addition, taxpayers must maintain sufficient records            
          to substantiate any deductions claimed.  Sec. 6001.                         
               Petitioners argue that the notice of deficiency is arbitrary           
          as to the tax items for 1999.  As discussed below, in certain               
          cases we have found that the Commissioner’s presumption of                  
          correctness does not attach when a determination is found to be a           
          “naked” assessment and therefore arbitrary and excessive.                   
          However, this doctrine applies only to unreported income, and the           
          usual presumption of correctness attaches when taxpayers assert             
          that the notice of deficiency is incorrect as to disallowed                 






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