Francis M. Gagliardi - Page 31




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         net gambling losses from slot machine play Mr. Gagliardi claimed             
         for 1999 and 2000 were significantly lower than the amount                   
         calculated by Mr. Nicely, and the amount claimed for 2001 was                
         within the error range calculated by Mr. Nicely.                             
              Respondent attempted to discredit Mr. Nicely by questioning             
         the formula Mr. Nicely used and Mr. Nicely’s assumptions24 by                
         which he determined, in his expert opinion, that there was only              
         an infinitesimal probability that Mr. Gagliardi won money (i.e.,             
         net) gambling on slot machines during the years in issue.                    


              23(...continued)                                                        
          $802,921, and $1,170,140 in 1999, 2000, and 2001, respectively.             
          See supra p. 14.  Accordingly, Mr. Gagliardi’s net losses from              
          gambling at the casinos on slot machines totaled $1,446,740                 
          ($375,360, $532,869, and $538,511 for 1999, 2000, and 2001,                 
          respectively).  This, however, does not include the $666,500 of             
          State lottery winnings petitioner received each year during the             
          years in issue.  Commissioner v. Groetzinger, 480 U.S. 23, 32               
          n.11 (1987) (characterizing a State lottery as “public gambling”            
          in a case treating gambling earnings as ordinary income); United            
          States v. Maginnis, 356 F.3d 1179, 1183 & n.6 (9th Cir. 2004)               
          (taxpayer’s lottery winnings enter into the sec. 165(d)                     
          calculation as wagering gains that taxpayer’s gambling losses at            
          the casinos can be applied to in addition to taxpayer’s gambling            
          winnings at the casinos); see supra p. 14.                                  
               24  For example, respondent took issue with the fact that              
          Mr. Nicely assumed that Mr. Gagliardi played on average 7 hours             
          per day on days Mr. Gagliardi gambled.  We found that on days               
          when he was at the casinos, Mr. Gagliardi spent at a minimum an             
          average of 10 hours per day at the casinos.  Accordingly, Mr.               
          Nicely’s assumptions were conservative and reasonable.  Using a             
          lower number resulted in a greater likelihood that Mr. Gagliardi            
          won money (i.e., net) gambling on slot machines--i.e., if Mr.               
          Nicely had used 10 hours per day the figure he would have come up           
          with would have made it even more improbable that Mr. Gagliardi             
          won money (i.e., net) gambling on slot machines during the years            
          in issue.                                                                   





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