Merlino v. C. I. R., 80-7591
| Decision Date | 30 October 1981 |
| Docket Number | No. 80-7591,80-7591 |
| Citation | 660 F.2d 415 |
| Parties | 81-2 USTC P 9755 Ernest L. MERLINO and Lieselotte M. Merlino, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ernest & Lieselotte Merlino, pro se.
John F. Murray, Acting Asst. Atty. Gen., Washington, D.C., for appellee.
Appeal from the United States Tax Court.
Before BROWNING and WRIGHT, Circuit Judges, and WEIGEL, * District Judge.
The Merlinos claimed a moving expense deduction of $2,901 after retiring and returning to Seattle from Germany. Because they lived in an apartment awaiting completion of a new home, Mr. Merlino did not work for at least 39 weeks in the 12-month period following their arrival. The Commissioner concluded that I.R.C. § 217(c)(2) prohibited the moving expense deduction and assessed a deficiency. The Tax Court upheld the Commissioner's ruling.
On appeal, the appellants renew their arguments to the Tax Court: (1) the 12- month, 39-week work requirement should not have begun to run until they had moved into their new residence, at which time Mr. Merlino's self-employment would have satisfied the work requirement; (2) because Mr. Merlino was a civilian employee of the military before retirement, the I.R.C. § 217(g) provision exempting members of the Armed Forces from the work requirement should apply; and, (3) section 217(i), which allows a deduction for moving expenses incurred by a retiree who worked abroad and upon retirement returns to the United States, should apply retroactively to them.
We do not overturn a Tax Court decision absent a clear mistake of law. Cruttenden v. Commissioner, 644 F.2d 1368, 1374 (9th Cir. 1981). The taxpayer carries the burden of showing that he comes within the provisions of a specific deduction. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934).
Section 1.217-2(b)(4) of the Treasury Regulations answers the first argument. It defines the date of arrival as the day the taxpayer secures even temporary lodging at the new place of residence.
This regulation is entitled to respect and will not be overturned unless unreasonable and plainly inconsistent with the statute. Lindemood v. Commissioner, 566 F.2d 646, 649 (9th Cir. 1977); Rohde v. United States, 415 F.2d 695, 698 (9th Cir. 1969). The regulation is reasonable and consistent with the statute.
The military exception of I.R.C. § 217(g) applies only to military personnel on active duty and not to civilian...
To continue reading
Request your trial
-
Nickell v. C.I.R.
...432 (1940). "The taxpayer carries the burden of showing that he comes within the provisions of a specific deduction." Merlino v. Comm'r., 660 F.2d 415, 416 (9th Cir.1981). And as we observed in National Life and Accident Insurance Co. v. United States, 524 F.2d 559, 560 (6th A treasury regu......
-
Vukasovich, Inc. v. C.I.R.
...(de novo review, but this court will disagree with Tax Court only if "unmistakable question of law so mandates"); Merlino v. Commissioner, 660 F.2d 415, 416 (9th Cir.1981); Carnation Co. v. Commissioner, 640 F.2d 1010, 1012 (9th Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 3......
-
First Charter Financial Corp. v. U.S.
...of the Tax Court, and will not disagree with that court unless an unmistakable question of law so mandates. Merlino v. Commissioner, 660 F.2d 415, 416 (9th Cir. 1981); Cruttenden v. Commissioner, 644 F.2d 1368, 1374 (9th Cir. 1981). Uniformity among the circuits is especially important in t......
-
Niles By and Through Niles v. U.S.
...specific deduction. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934); Merlino v. Commissioner, 660 F.2d 415, 416 (9th Cir.1981). Niles must prove that he did not receive compensation within the meaning of Sec. 213(a) for the medical expenses he c......