Francis M. Gagliardi - Page 22




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              Mr. Hunner prepared net worth statements with supporting                
         documents for each line item for Mr. Gagliardi as of December 31,            
         1998 through 2001 (net worth statements).  The net worth                     
         statements were prepared using records from 1998, 1999, 2000, and            
         2001.  The net worth statements reflect that Mr. Gagliardi did               
         not have any unaccounted-for increase in his net worth from                  
         gambling activities for the years at issue.                                  
              Respondent claims that the summaries of living expenses do              
         not include expenses Mr. Gagliardi incurred.  Respondent objected            
         to the documents listing petitioner’s living expenses, stating:              
              This is a document that respondent would have no way of                 
              corroborating whether it’s true or not.  We simply have                 
              to rely on the testimony of Mr. Gagliardi.  Again, this                 
              is not the way the government can do business is [sic]                  
              simply relying on people’s words. * * *  [T]here’s just                 
              absolutely no way I could know whether that was a                       
              complete list or an incomplete list, whether that was                   
              true or not true.  I certainly wasn’t with Mr.                          
              Gagliardi during that time period.[15]                                  

               15  Ironically, the same could be said for a gambling log.             
               Additionally, respondent’s counsel claimed that the                    
          Government cannot shoulder the burden of doing a net worth                  
          analysis in a case such as this.  The Commissioner is not                   
          required to use indirect methods of proof to establish the amount           
          of a gambler’s losses.  The evidence the Commissioner wishes to             
          present and the expense and effort the Commissioner wishes to               
          spend on any given case lie with the Commissioner.  We note,                
          however, that the Commissioner routinely uses the net worth                 
          method to reconstruct income in unreported income cases.  See               
          Holland v. United States, 348 U.S. 121 (1954).                              
               Furthermore, respondent’s counsel did not understand the               
          difference between games of skill and games of chance and could             
          not answer whether Rev. Proc. 77-29, 1977-2 C.B. 538 (the revenue           
                                                             (continued...)           





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