ESTATE OF KEITH L. GURR v. COMMISSIONER

T.C. Summary Opinion 2002-7

UNITED STATES TAX COURT

ESTATE OF KEITH L. GURR, DECEASED,
MARY JULENE WOODEN, GENERAL PERSONAL REPRESENTATIVE,
AND DELMA P. GURR, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7194-99S. Filed January 30, 2002.

Bradley S. Shannon, for petitioner Delma P. Gurr.1

R. Craig Schneider, for respondent.

COUVILLION, Special Trial Judge: This case was heard

pursuant to section 7463 in effect when the petition was filed.2

1
At the time of the trial, petitioner Keith L. Gurr was
represented by counsel. When the estate was opened, his counsel
filed a Motion For Withdrawal, which was granted.
2
Unless otherwise indicated, section references
hereafter are to the Internal Revenue Code in effect for the
years at issue. All Rule references are to the Tax Court Rules
of Practice and Procedure.
 - 2 -

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.

Respondent determined deficiencies in petitioners' Federal

income taxes, additions to tax, and accuracy-related penalties as

follows:

Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)

1992 $ 1,489 $ 372 $ 298
1993 10,330 2,583 2,066

At trial, the parties filed a written stipulation, wherein

petitioners conceded the above deficiencies, additions to tax,

and the accuracy-related penalties.3 The only issue for decision

is whether Delma P. Gurr (petitioner) is entitled to relief from

joint and several liability under section 6015 for the years at

issue.4 More specifically, petitioner seeks relief under section

6015(b), alternatively, limited liability relief under section

6015(c), and, in the further alternative, relief under section

3
After the case was heard and taken under advisement,
Keith L. Gurr died, and the Estate of Keith L. Gurr, Deceased,
Mary Julene Wooden, General Personal Representative, was
substituted as petitioner. Because of his health, Mr. Gurr did
not appear at trial or present any evidence.
4
Sec. 6015 was enacted by sec. 3201(a) of the Internal
Revenue Service Restructuring and Reform Act of 1998, Pub. L.
105-206, 112 Stat. 734, and is effective with respect to any tax
liability arising after July 22, 1998, and any tax liability
arising on or before July 22, 1998, that is unpaid on that date.
 - 3 -

6015(f). Respondent and Keith L. Gurr (Mr. Gurr) opposed

petitioner's claim. However, in a posttrial reply brief,

respondent conceded petitioner's entitlement to limited liability

relief under section 6015(c) to the extent of 50 percent of the

deficiencies attributable to three adjustments in the notice of

deficiency for 1992 and four notice of deficiency adjustments for

the year 1993 relating to certain real estate transactions.

Respondent made no concession with respect to one adjustment in

the 1993 notice of deficiency relating to the taxable portion of

Social Security benefits received by petitioners that year.

Given the concession of respondent, petitioner, nevertheless,

maintains her entitlement to total relief under section 6015(b),

(c), and (f).

Some of the facts were stipulated. Those facts, and the

annexed exhibits, are so found and are incorporated herein by

reference. At the time the petition was filed, Mr. Gurr's legal

residence was Sandy, Utah, and petitioner's legal residence was

West Jordan, Utah.

Petitioner and Mr. Gurr were married in 1952. Their

marriage lasted 43 years. They separated on November 4, 1993,

and were divorced on August 29, 1995. They had five children.

Petitioner had one other child from a prior marriage.

Respondent issued separate notices of deficiency to

petitioner and Mr. Gurr, and a joint petition was filed timely.
 - 4 -

Petitioner thereafter filed an amended petition to assert her

claim for relief under section 6015.

Mr. Gurr had a tenth-grade education. Throughout their

marriage, he was self-employed. For several years, he operated a

coal business, wherein he purchased and delivered coal to

customers. At one time, he and petitioner operated a commercial

horse riding stable. Petitioner assisted in the operation of

this business. Later, Mr. Gurr went into the real estate

business, wherein he purchased and held land, either for resale

or development. This was the activity Mr. Gurr was engaged in

during the years at issue. That activity was the principal

source of income of petitioner and Mr. Gurr during 1992 and 1993.

At the time of trial, Mr. Gurr was 77 years of age, and both he

and petitioner had been retired for several years.

Petitioner was a high school graduate and attended Brigham

Young University for a short time. She did not receive a degree

from that institution. During World War II, petitioner served 2

years in the women's branch of the U.S. Navy which, at that time,

was known as the WAVES. Other than assisting in the operation of

the riding stable business, she was never employed outside the

home during her marriage with Mr. Gurr.

Petitioners filed joint Federal income tax returns for 1992

and 1993. For each year, the income and expenses from Mr. Gurr's

real estate activity were reported on Schedule C, Profit or Loss
 - 5 -

From Business, of the return. Petitioners reported Schedule C

losses of $36,747 and $12,668, respectively, for 1992 and 1993.

In the notices of deficiency, respondent made no adjustments to

the Schedule C income and expenses reported by petitioner and Mr.

Gurr on their 1992 and 1993 returns, thereby allowing the losses

claimed. Each of the 1992 and 1993 tax returns also included a

Schedule D, Capital Gains and Losses, with respect to certain

real estate transactions. On the Schedule D for 1992, among

other transactions reported on that Schedule, petitioner and Mr.

Gurr reported a long-term capital loss of $173,387 from two real

estate transactions. On that same Schedule D, petitioner and Mr.

Gurr reported a long-term capital gain of $7,768 from a separate

real estate transaction. In the notices of deficiency,

respondent disallowed the $173,387 long-term capital loss for

lack of substantiation. Respondent also determined that the

reported $7,768 long-term capital gain constituted ordinary

income to the extent of $6,925.

On their 1993 return, petitioner and Mr. Gurr claimed a

Schedule D short-term capital loss of $1,000 from the sale of

real estate, a long-term capital loss of $16,400 as guarantors on

two notes, and long-term capital gains from installment sales of

$12,673. In the notices of deficiency, respondent disallowed

these two losses for lack of substantiation. Respondent further

determined that $1,082 of the Schedule D long-term capital gain
 - 6 -

of $12,673 constituted ordinary income.

Finally, on their 1993 return, petitioner and Mr. Gurr

claimed a $158,841 net operating loss carryover from 1992. That

carryover loss claimed on the 1993 return was disallowed in the

notices of deficiency because the adjustments to the 1992 tax

return fully eliminated any carryover loss to 1993.

As a result of the adjustments to the 1993 return,

respondent determined that $3,936 in Social Security benefits

received by petitioner and Mr. Gurr constituted taxable income.

Petitioner was not involved in keeping the books and records

for the real estate activity. However, she was familiar with the

manner in which Mr. Gurr maintained his records. His system of

record keeping was simply retaining receipts and other documents

accumulated over the year, which he gathered up at the end of

each year and took to their accountant to be sorted out for

income tax purposes. Petitioner knew, however, that Mr. Gurr's

system of record keeping was deficient in many respects, as

evidenced by the fact that substantially all the adjustments in

the notices of deficiency were based upon the failure to

substantiate the amounts claimed on their joint returns as

capital gain losses and the failure to substantiate the character

of their reported capital gains. At trial, petitioner testified:

"The whole reason we are here today is because of Keith Gurr's

poor record keeping." That testimony was corroborated by
 - 7 -

petitioner's daughter, who testified at trial on behalf of

petitioner.

Although petitioner was not involved in the day-to-day

conduct of the real estate business, over the years she was a

party to many transactions in the acquisition and sales of

property and, in several instances, in instituting legal actions

with Mr. Gurr in connection with land titles. Several tracts of

land were acquired in her name alone and others jointly with Mr.

Gurr. The Court is satisfied from the evidence that petitioner's

name on these deeds was not for nominal purposes. For example,

in 1991, Mr. Gurr filed an individual petition for relief under

Chapter 11 of the Bankruptcy Code. Prior to institution of the

proceeding, he arranged with petitioner to have certain real

estate transferred to her in order that such property would be

beyond the reach of his creditors.5 Petitioner knew and

understood that to be the purpose of the transfer. During the

course of the bankruptcy proceeding, Mr. Gurr petitioned the

court for the sale of a certain tract of real estate in which

petitioner owned a one-half interest. That sale was a $455,000

transaction. Petitioner consented to the sale on the condition

that her interest in the sales proceeds be protected. She also

consented to the use of some of the proceeds for payment of

5
There is no indication in the record that Mr. Gurr's
creditors challenged the validity of the transfer.
 - 8 -

secured claims owing by Mr. Gurr. There are other instances

where petitioner and Mr. Gurr filed a joint action to clear the

title to certain property they owned or subordinated mortgage

rights on certain properties to inferior creditors. During 1993

alone, petitioner sold her interests in at least nine separate

real estate properties.

The marriage between petitioner and Mr. Gurr was not

harmonious. Petitioner and her daughter both testified that,

over the years, Mr. Gurr was abusive both physically and mentally

to petitioner and the children. Petitioner was not allowed any

role in the family finances, nor did Mr. Gurr keep petitioner

informed on their finances or how well the real estate activity

was doing. Mr. Gurr's allowances to petitioner for the household

and furnishings for the children were meager. Oftentimes, Mr.

Gurr threatened petitioner to obtain her signatures on various

documents in connection with the real estate activity. In spite

of these shortcomings, the marriage lasted for 43 years.

At the time of the divorce, a considerable amount of real

estate was owned by petitioner and Mr. Gurr. Several tracts were

in petitioner's name, and others were in the joint names of

petitioner and Mr. Gurr.

On October 24, 1995, the State court having jurisdiction of

the divorce proceeding approved a property settlement between

petitioner and Mr. Gurr. In that settlement, petitioner was
 - 9 -

allotted an undivided half interest with Mr. Gurr in 2,337 acres

of land. Several other tracts of undisclosed acreage were

allotted to petitioner in full ownership. The family home was

allotted to Mr. Gurr, and petitioner was allotted a lot and

mobile home, where she established her residence. Petitioner

also was awarded $25,041.17 in cash, an additional amount of

$46,000 to be paid by Mr. Gurr over 2 years, and, finally,

$39,768 due on installments from prior sales of real estate. Mr.

Gurr was ordered to pay $7,226 to petitioner's divorce attorney.

The agreement provided that neither party was liable for alimony.

In an order by the same court dated October 24, 1995,

entitled Additional Findings of Fact and Conclusions of Law, the

court stated:

2. The parties have acquired the following personal
properties during their marriage:

* * * * * * *

(d) The tax loss carryforward as reported on the 1994
tax return is an asset of the parties and should be divided
equally for future years. [Emphasis added.]6

6
The court's order is dated Oct. 25, 1995, and refers to
a 1994 loss carryover. There is some question in the Court's
mind as to whether 1994 is the year that was intended by the
court, because the 1993 return had not been filed as of the date
of the court's order. The 1993 return included a net operating
loss carryover worksheet that reflected a net operating loss
carryover of $121,470 that would have carried over to the year
1994. Therefore, the income tax return for 1994 presumably would
have included as a deduction the $121,470 as reflected on the net
(continued...)
 - 10 -

Thereafter, in the same decree, petitioner was awarded "one-half

of the net operating tax loss carry forward balance for use on

unfiled and future returns."

The 1992 Federal income tax return by petitioner and Mr.

Gurr was filed on January 21, 1994, as a joint return.

Petitioner and Mr. Gurr were separated at that time. The return

was prepared at the direction of Mr. Gurr by his return preparer,

a certified public accountant. Petitioner did not sign that

return and never authorized anyone to sign the return for her.

She did not know a return had been filed for 1992. Nevertheless,

petitioner at trial stipulated that she intended to file a joint

return for 1992 and did not challenge any of the income or

expenses reported on the return.

The 1993 Federal income tax return was also filed as a joint

return on May 9, 1996, after the divorce with Mr. Gurr.

Petitioner signed that return at the offices of her divorce

attorney.

At the time petitioner signed the 1993 return, she was

accompanied to her attorney's office by her daughter. Petitioner

was not comfortable with the net operating loss deduction of

$158,841 claimed on page one of the return (which she referred to

6
(...continued)
operating loss carryover worksheet that was included with the
1993 return.
 - 11 -

at trial as a "credit"). She did not want to sign the return and

only signed because her attorney recommended that she do so. The

lawyer's recommendation was based solely on his belief that, if

petitioner signed the return, because of the "credits", she would

"never have to pay any income tax for the rest of her life". Not

satisfied with that recommendation and requesting a more specific

explanation, the attorney's reply was "What difference does it

make? You've got credits, and just sign it." Petitioner signed

the return and admitted at trial that she was not comfortable

with the explanation and recommendation of her attorney with

regard to the claimed "credits" on the returns. Petitioner also

acknowledged knowing that her attorney was not knowledgeable in

tax law; however, she made no attempt to ascertain from other

sources the merits of the claimed net operating loss carryover.

Petitioner's daughter cast further light on the

circumstances surrounding her mother's signing of the 1993

return. Following is a portion of her testimony on direct

examination:

Q So, Darla, just moving back to just the signing
of this '93 tax return, when you went into the office with
your mother, did she ask the attorney about anything on that
tax return --

A Honestly, --

Q –- before she signed it?
 - 12 -

A –- at first she was going to sign it. And I
says, "What are you doin'? Why are you just signing that?
Hasn't that gotten you into trouble in the past?" And so
then she started to question it. And then he –- Billjanic
stated to her, "What do you care what is in the return?
It's going to make you not have to pay taxes for the rest of
your life. There's a big credit. Half of it's going to be
declared to you in the divorce decree, so just sign it." I
says, "What are the credits from? At least you could tell
us what the credits are from," and he would not tell us. He
says –- he says, "I really don't know. They're here. Sign
it. It benefits your mother. That's all there is to it."

On cross-examination, petitioner's daughter further testified:

Q You mentioned that you told your mom, when she
was going to sign the return –- * * * "Now, Mom, what are
you doing?" You know, "Hasn't this gotten you in enough
trouble in the past?"

A Right.

Q What were you talking about?

A Well, just from how badly that he treated her and
that he just expected her to do things. She never knew what
was going on. I felt that she succumbed to my father and
let him rule her and that she should be trying to
investigate, to read the documents, and to know what's going
on. I felt that she needed to understand what was going on
because much of her life she had been beaten down to the
point of where she didn't care what was going on and she
needed to learn this. She needed to be independent and read
the documents and understand them before she signed them.

As a general rule, spouses filing a joint return are each

jointly and severally liable for the full tax liability for the

taxable year of the return under section 6013(d)(3). Section

6015, however, provides several avenues for relief from the

imposition of joint and several liability on a spouse. Section
 - 13 -

6015(b) provides complete or proportionate relief from liability

for an innocent spouse, similar to former section 6013(e).

Section 6015(c) permits a taxpayer who is divorced or separated

to elect to have his or her tax liability calculated as if

separate returns had been filed, and, finally, section 6015(f)

provides an opportunity to obtain equitable relief if relief is

not otherwise available to a spouse.

The Court first addresses petitioner's claim for relief

under section 6015(b). To qualify for relief under this

provision, a taxpayer must establish that:

(1) A joint return was made under section 6013. Sec.

6015(b)(1)(A).

(2) There was an understatement of tax attributable to

erroneous items of one spouse. Sec. 6015(b)(1)(B).

(3) At the time of signing the return, the spouse seeking

relief did not know and had no reason to know of such

understatement. Sec. 6015(b)(1)(C).

(4) Taking into account all the facts and circumstances, it

is inequitable to hold the spouse seeking relief liable for the

deficiency in tax attributable to the understatement. Sec.

6015(b)(1)(D).

(5) The spouse requesting relief has elected the benefits of

subsection (b) within a certain prescribed time period. Sec.

6015(b)(1)(E).
 - 14 -

Because these requisites are stated in the conjunctive, it is

necessary that the taxpayer claiming relief establish that all

requisites of section 6015(b)(1)(A) through (E) have been met.

Mitchell v. Commissioner, T.C. Memo. 2000-332; Kalinowski v.

Commissioner, T.C. Memo. 2001-21.

Respondent agrees that petitioner satisfies the requirements

of section 6015(b)(1)(A), (B), and (E) for both years at issue.

Respondent further agrees that, for 1992, petitioner satisfies

the requirements of section 6015(b)(1)(C) because petitioner did

not know and had no reason to know of the understatement, since

petitioner did not sign the 1992 return and did not know the

contents of that return.

For 1993, respondent contends that petitioner knew or had

reason to know of the understatement of tax and, therefore, fails

to satisfy section 6015(b)(1)(C). Respondent also contends that,

as to both 1992 and 1993, taking into account all the facts and

circumstances, it would not be inequitable to hold petitioner

liable for the understatement under section 6015(b)(1)(D).

With respect to the 1993 return, the Court is satisfied from

the record that petitioner had reason to know of the

understatement. Both petitioner and her daughter were more than

just skeptical about the substantial carryover loss. They

questioned the past credibility of Mr. Gurr, and, moreover,

neither petitioner nor her daughter was satisfied with the
 - 15 -

answers to the questions they posed to petitioner's divorce

attorney regarding the net operating loss carryover claimed on

the return. Yet, in spite of these doubts, neither petitioner

nor her daughter looked beyond the inquiries they made with the

divorce lawyer. The Court disagrees with petitioner's argument

that she is entitled to relief under the standard set forth in

Price v. Commissioner, 887 F.2d 959, 965 (9th Cir. 1989), revg.

an Oral Opinion of this Court, that a spouse has "reason to know"

of an understatement if a reasonably prudent taxpayer in his or

her position at the time of signing the return could be expected

to know that the return contained the understatement. Although

this Court is not bound by Price v. Commissioner, supra, under

Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445

F.2d 985 (10th Cir. 1971), since this case would not be

appealable to the Court of Appeals for the Ninth Circuit, the

facts here satisfy the Court that petitioner did not meet the

standard set forth in Price. Petitioner and her daughter both

knew that petitioner's divorce attorney was not knowledgeable

about tax law, and the explanations the attorney provided

convinced them that such explanations were not satisfactory.

Yet, petitioner made no further efforts to go beyond the

recommendations of her divorce lawyer. Petitioner was under a

duty to inquire further. For 1993, therefore, the Court holds

that petitioner possessed constructive knowledge of the
 - 16 -

understatement. Kalinowski v. Commissioner, supra. Therefore,

petitioner has not satisfied the requirement of section

6015(b)(1)(C) with respect to the year 1993.

Under section 6015(b)(1)(D), a spouse seeking relief from

joint liability must establish that it is inequitable to hold him

or her liable for the deficiency attributable to the

understatement based upon due consideration of all the facts and

circumstances.

One of the factors to be considered is whether the taxpayer

seeking relief has significantly benefited from the

understatement on the return. Sec. 1.6013-5(b), Income Tax Regs.

Transfers of property to the spouse seeking relief are relevant

in determining the existence of a significant benefit, and such

transfers are not limited to the tax years in which the

understatement relates. Kalinowski v. Commissioner, supra. In

spite of the abusive nature of the marriage over the years,

petitioner acquired numerous tracts of land in her name

individually and in co-ownership with her spouse, Mr. Gurr. She

was awarded those properties in the property settlement with Mr.

Gurr after the two were divorced.

The Court notes that the understatements at issue are based

upon adjustments by respondent to Schedules D of the tax returns

for 1992 and 1993. All these adjustments are related to and

arose out of the real estate activity reported on Schedules C of
 - 17 -

the returns. No adjustments were made by respondent to Schedules

C of the returns for 1992 and 1993. For both years, net losses

were claimed on the Schedules C, which respondent allowed. Thus,

petitioner received a tax benefit from these losses. On this

premise, it appears to the Court that there is a basic

inconsistency in petitioner's claim for relief. On the one hand,

petitioner claims she should be relieved of joint liability on

the Schedule D adjustments because she was not a participant and

not involved in the real estate activity; yet, petitioner does

not disavow or disclaim the tax benefits she realized from the

Schedule C losses claimed and allowed on the 1992 and 1993

returns, all in connection with the same real estate activity.

The case for inequity has not been established. Petitioner has

not satisfied the requisites of section 6015(b)(1)(D) and,

accordingly, is not entitled to relief from joint liability under

section 6015(b) for both years at issue.

The Court next addresses petitioner's claim for relief under

section 6015(c). As noted earlier, respondent conceded

petitioner's entitlement to relief under section 6015(c) to the

extent of 50 percent of the understatements relating to most of

the adjustments for the 2 years in question, all of which are

related to the real estate activity. Petitioner claims relief

for that portion of the understatements not conceded by

respondent.
 - 18 -

Section 6015(c) provides relief from joint liability for

spouses either no longer married, legally separated, or living

separate and apart. Generally, this avenue of relief allows a

spouse to elect to be treated as if a separate return had been

filed. Rowe v. Commissioner, T.C. Memo. 2001-325. Section

6015(c)(2) places the burden of proof with respect to

establishing the portion of the deficiency allocable to the

electing spouse upon such spouse.

With respect to erroneous deduction items, section 1.6015-

3(d)(2)(iv), Proposed Income Tax Regs., 66 Fed. Reg. 3898 (Jan.

17, 2001), entitled Erroneous Deduction Items, provides generally

that erroneous deduction items related to a business or

investment are allocated to the spouse who owned the business or

investment, and, if both spouses owned an interest in such

activity, an erroneous deduction item is generally allocated

between the spouses in proportion to each spouse's ownership

interest unless there is clear and convincing evidence supporting

a different allocation. Erroneous items of income are allocated

similarly to the spouse who was the source of the income. Sec.

1.6015-3(d)(2)(iii), Proposed Income Tax Regs., 66 Fed. Reg. 3898

(Jan. 17, 2001). Section 6015(c)(2) provides that each

individual who elects application of section 6015(c) "shall have

the burden of proof with respect to establishing the portion of

any deficiency allocable to such individual".
 - 19 -

The question here is whether petitioner established by clear

and convincing evidence that she did not own any part of the real

estate activity giving rise to the disallowed deductions and

adjustments relating to Schedules D of petitioner's joint returns

for the 2 years at issue.

The record does not support petitioner's contentions. As

noted earlier, regardless of Mr. Gurr's threats to her, over the

years, petitioner acquired real estate individually and in co-

ownership with Mr. Gurr and participated in various legal matters

pertaining to the real estate activity, including assisting Mr.

Gurr in his personal bankruptcy in accepting title to certain of

his real estate to escape the reach of his creditors. The

divorce court essentially awarded one-half of the real estate to

each and specifically provided that the net operating loss

carryover at issue in this case constituted an "asset" of Mr. and

Mrs. Gurr, to be divided equally for Federal income tax purposes.

Moreover, the Schedule C for the real estate activity for each

year at issue reported net losses which were not disallowed by

respondent. By filing joint income tax returns for these years,

petitioner realized a 50-percent tax benefit from these losses.

She is not entitled to relief for the 50-percent portion of the

tax understatements from the Schedule D adjustments not conceded

by respondent. On this record, petitioner has not established

that she is entitled to relief under section 6015(c) for any
 - 20 -

amount greater than that conceded by respondent.

Petitioner's final claim for relief is under section

6015(f). That provision allows the Secretary to relieve a spouse

of liability if, taking into account all the facts and

circumstances, it is inequitable to hold the spouse liable for

any unpaid tax or deficiency and relief is otherwise not

available under section 6015(b) or (c). Cheshire v.

Commissioner, 115 T.C. 183, 198 (2000). This Court's review

under section 6015(f) is limited to whether there was an abuse of

discretion by the Secretary in denying relief. Cheshire v.

Commissioner, supra at 198; Butler v. Commissioner, 114 T.C. 276,

292 (2000). On the basis of all the facts and circumstances

discussed earlier, petitioner has not established that there was

an abuse of discretion by respondent in denying her claim for

relief under section 6015(f).

Reviewed and adopted as the report of the Small Tax

Division.

Decision will be entered

under Rule 155.7

7
For the year 1993, respondent determined that, because
of the income and expense adjustments, $3,936 of Social Security
benefits received by petitioner and Mr. Gurr is includable in
their gross income. It appears to the Court that both Mr. Gurr
and petitioner received Social Security benefits during 1993;
(continued...)
 - 21 -

7
(...continued)
however, the record does not reflect the total amount of the
benefits received and the portions thereof received by each
spouse. Respondent, on brief, takes the position that, since
petitioner did not establish the amount received by Mr. Gurr, the
entire amount of taxable Social Security income should be
attributed to petitioner. Although respondent is technically
correct, the Court is of the view that, if the Social Security
amounts received by petitioner and Mr. Gurr that year can be
ascertained, and there is no dispute as to these amounts, the
amounts received by Mr. Gurr should not be attributed to
petitioner. If, however, there is any legal or factual dispute
as to this item, then respondent's position is sustained, and the
entire amount of the income should be attributed to petitioner.