                        T.C. Memo. 2003-222



                      UNITED STATES TAX COURT



               JAMES C. DUBOIS, SR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10718-02.             Filed July 29, 2003.



     James C. DuBois, Sr., pro se.

     John W. Stevens and Robert Heitmeyer, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court to redetermine

a $2,228 deficiency determined by respondent in his 1999 Federal

income tax.   We decide as to that year whether petitioner’s gross

income includes Social Security payments and gambling winnings as

determined by respondent.   We hold it includes the gambling

winnings but not the Social Security payments.   Section
                                 -2-

references are to the applicable versions of the Internal Revenue

Code.   Rule references are to the Tax Court Rules of Practice and

Procedure.   Dollar amounts are rounded to the dollar.

                           FINDINGS OF FACT

     Some facts were stipulated.    The stipulated facts and the

exhibits submitted therewith are incorporated herein by this

reference.   We find the stipulated facts accordingly.   Petitioner

resided in Detroit, Michigan, when his petition was filed.    On

March 24, 2003, the date of trial, he was 71 years old.

     Petitioner filed timely a 1999 Form 1040A, U.S. Individual

Income Tax Return, using the filing status “Married filing

separate return” and affixing thereto a sticker received from the

Internal Revenue Service showing his street address as “WARD ST”.

Petitioner stated on his return that his gross income included

only $11,968 of pension payments which he received during 1999.

Petitioner attached to his return a Form 1099-R, Distributions

From Pensions, Annuities, Retirement or Profit-Sharing Plans,

IRAs, Insurance Contracts, etc., showing the $11,968 as well as

an amount of Federal income tax that had been withheld from his

pension.   The Form 1099-R showed petitioner’s street address as

the Ward Street address.    Petitioner computed his taxable income

at $4,786 by subtracting from the $11,968 a standard deduction of

$4,450 and an exemption of $2,750.
                                  -3-

     During 1999, petitioner admittedly received gambling

winnings of $920, $768, $825, and $621 from Hazel Park Harness

Raceway (Hazel Park).   Hazel Park reported to respondent by way

of Forms W-2G, Certain Gambling Winnings, that it had paid

petitioner these amounts as well as other gambling winnings of

$1,405 and $930.   The Social Security Administration also

reported to respondent by way of a Form 1099-SSA, Taxable

Benefits, that it had paid $11,022 to petitioner during 1999.

Respondent determined that the reported gambling winnings of

$920, $768, $825, $621, $1,405, and $930 were includable in

petitioner’s 1999 taxable income, as was $9,369 of the $11,022 in

Social Security payments.

     A Hazel Park teller prepared a Form 5754, Statement by

Person(s) Receiving Gambling Winnings, for each of petitioner’s

six reported gambling winnings.    These forms, which were all

signed by petitioner during 1999, showed “Freeland St” as

petitioner’s street address.1   The Freeland Street address was

the residential address during 1999 of petitioner’s wife and was

the residential address of petitioner from 1965 through sometime

before 1999.   The tellers who prepared the Forms 5754 did so by

showing as petitioner’s address the address that appeared on

petitioner’s driver’s license; i.e., the Freeland Street address.


     1
       The Forms 5754 reported that the $920, $768, $825, $621,
$1,405, and $930 were paid in 1999 on Feb. 17, June 5, June 16,
Aug. 11, July 20, and Sept. 3, respectively.
                                 -4-

Although petitioner sometime before 1999 had moved from the

Freeland Street address to the Ward Street address, petitioner

had never notified the Motor Vehicle Department of his change of

address.   The Ward Street address was the home of petitioner’s

son and his family.    Petitioner also lived there during 1999,

apart from his wife.

      Respondent mailed the subject notice of deficiency to

petitioner at the Ward Street address.

                               OPINION

1.   Social Security

      Section 86 taxes Social Security benefits pursuant to a

formula.   If a taxpayer’s “modified adjusted gross income” plus

one-half of the Social Security benefits received during the year

exceeds the “base amount”, then a portion of the Social Security

benefits is includable in gross income.    Sec. 86(a)--(d).

Section 86(c)(1)(A) provides generally that the base amount is

$25,000 in the case of a married taxpayer such as petitioner who

does not file a joint Federal income tax return for the year.

Section 86(c)(1)(C) provides that such a taxpayer’s base amount

is zero for any year for which the taxpayer does not live apart

from his or her spouse at all times during that year.    Living

apart at all times means that the taxpayer and his or her spouse

live in separate residences on each day of the year.    McAdams v.

Commissioner, 118 T.C. 373 (2002).
                                 -5-

     Respondent determined that petitioner’s base amount was zero

for 1999 because he did not live apart from his spouse on each

day of the year.    Petitioner testified that he lived apart from

his wife during all of 1999.   We find petitioner’s testimony

credible in light of the record as a whole, including the

undisputed facts that petitioner filed his 1999 tax return using

the status “Married filing separate return”, that petitioner used

the Ward Street address on that return, that respondent

recognized the Ward Street address as petitioner’s address when

he mailed to petitioner the sticker attached to his 1999 return,

that respondent mailed the subject notice of deficiency to

petitioner at the Ward Street address, and that the payor of

petitioner’s pension mailed the Form 1099-R to petitioner at the

Ward Street address.   Whereas the Forms 5754 did show

petitioner’s address as the Freeland Street address, i.e., the

address of petitioner’s wife, those forms were prepared by the

Hazel Park tellers and not by petitioner.   The tellers simply

inscribed on those forms the address for petitioner shown on his

driver’s license.   We find credible petitioner’s testimony as to

why his driver’s license continued to list the Freeland Street

address as his address.   We hold for petitioner on this issue.
                                  -6-

2.   Gambling Winnings

      Respondent determined that petitioner received the disputed

gambling winnings of $1,405 and $930.      Petitioner makes no claim

that he did not receive these amounts or that the Forms 5754 do

not bear his name and a corresponding signature.      We understand

petitioner to claim that he does not remember signing these forms

and, thus, that the signatures on the Forms 5754 may not actually

be his.

      Upon our review of the record, including our comparison of

the signatures on each of the Forms 5754 and our comparison of

the dates of those respective forms, we sustain respondent’s

determination as to this issue.    Petitioner’s 1999 tax return as

filed did not include any of his gambling winnings, and he has

not contested that he received the six amounts shown on the Forms

5754.     In addition, petitioner admitted at trial that he did not

report other gambling winnings which he had received in 1999,

each of which was less than $600.2      Whereas petitioner in his

petition alleged that he had approximately $2,000 of gambling

losses to offset his gambling winnings, he has failed to prove

this allegation.     Petitioner, as the person claiming a deduction,

must prove his entitlement to that deduction; e.g., by

maintaining sufficient records to substantiate the deduction.


      2
       Petitioner testified that he believed that gambling
winnings less than $600 are not includable in a taxpayer’s gross
income.
                               -7-

See New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934);

see also sec. 6001; sec. 1.6001-1(a), Income Tax Regs.   We hold

that petitioner is not entitled to deduct any of his claimed

gambling losses.


                                          Decision will be entered

                                     under Rule 155.
