Marcello v. Commissioner

¶1Memorandum Opinion

¶2WITHEY, Judge: A deficiency in the income tax of each of the respective petitioners for 1957 has been determined by respondent as follows:

¶3The only issue presented is whether, by virtue of the disallowance of certain claimed deductions of a partnership in which the respective husband petitioners were partners, the taxable reported income of each of the petitioners has been*281 understated.

¶4All of the facts have been stipulated and we adopt the stipulation as our findings of fact as follows:

¶5Petitioners, Joseph and Anastasia Marcello are husband and wife, with their address as c/o Nola Printing Company, 530 Iris Street, New Orleans, Louisiana. These petitioners filed their joint United States income tax return for the calendar year 1957 with the district director of internal revenue at New Orleans, Louisiana.

¶6Anthony and Maria Carollo are husband and wife residing at 5500 Vermillion Boulevard, New Orleans, Louisiana. These petitioners filed their joint United States income tax return for the calendar year 1957 with the district director of internal revenue at New Orleans, Louisiana.

¶7Petitioners John J. and Marie Pecoraro are husband and wife residing at 3631 Elysian Field Avenue, New Orleans 22, Louisiana. These petitioners filed their joint United States income tax return for the calendar year 1957 with the district director of internal revenue at New Orleans, Louisiana.

¶8Petitioners Joseph A. and Sletia Poretto are husband and wife residing at 26 Sonia Place, New Orleans 21, Louisiana. These petitioners filed their joint United States income tax*282 return for the calendar year 1957 with the district director of internal revenue at New Orleans, Louisiana.

¶9At all times material petitioners Joseph Marcello, Jr., Anthony Carollo, John J. Pecoraro, and Joseph A. Poretto, were members of Nola News, a partnership engaged in the business of printing and furmishing racehorse wire services to subscribers. An additional member of the partnership not involved in this proceeding was Ralph Emery of Chicago, Illinois. Under the agreement of the partnership, the five partners were to share in the net profits and losses equally after salaries were paid to the partners Joseph A. Poretto and Joseph Marcello, Jr.

¶10At all times material the address of Nola News was 530 Iris Street, New Orleans, Louisiana.

¶11Nola News timely filed a United States partnership return of income on Form 1065, for the fiscal year ended February 28, 1957, with the district director of internal revenue, New Orleans, Louisiana.

¶12On December 29, 1956, Nola News issued check number 338 in the amount of $100 on its bank account, payable to the order of Frank Ryan.

¶13On December 29, 1956, Nola News issued check number 337 in the amount of $500 on its bank account, payable*283 to the order of the American Committee on Italian Mitigation. This check represented a contribution to such committee.

¶14On June 7, 1956, Nola News issued a check number 1449 in the amount of $3,500 on its bank account, payable to the order of Ernest M. Loeb and Co., investment brokers, New Orleans, Louisiana.

¶15No oral testimony or documentary evidence other than the income tax returns of petitioners has been offered or introduced into the record herein. There is, therefore, no proof whatsoever that the three checks stipulated to have been issued by the partnership were ever delivered or cashed. Except for the check drawn to the American Committee on Italian Mitigation there is also no evidence concerning the nature of such payments on the assumption that the checks had been delivered and cashed by the payees thereof. With respect to the exception there is no proof as to whether the American Committee on Italian Mitigation is a charitable institution within the meaning of section 170(c) of the Internal Revenue Code of 1954.

¶16For virtually complete lack of any proof to show error in respondent's determination of the deficiencies herein, his determination of*284 deficiency in each case is sustained.

¶17Decision will be entered for the respondent.