Jon R. Ecker - Page 7




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                    (2) Meets the express requirements of the                         
               individual’s employer, or the requirements of                          
               applicable law or regulations, imposed as a condition                  
               to the retention by the individual of an established                   
               employment relationship, status, or rate of                            
               compensation.  [Sec. 1.162-5(a), Income Tax Regs.]                     
               Implicit in both section 162 and the regulations is that the           
          taxpayer must be established in a trade or business before any              
          expenses are deductible.  Link v. Commissioner, 90 T.C. 460                 
          (1988), affd. without published opinion 869 F.2d 1491 (6th Cir.             
          1989); Jungreis v. Commissioner, 55 T.C. 581 (1970).  The                   
          question of whether petitioner was established in a trade or                
          business is one of fact which we must discern from evidence in              
          the record.  Link v. Commissioner, supra; sec. 1.162-5(b)(2),               
          Income Tax Regs.  Petitioner was employed by CE on February 4,              
          1996.  One of the questions presented in this case is whether at            
          that point he was established in the trade or business of                   
          piloting fixed-wing aircraft.                                               
               For the 7 months prior to joining CE, petitioner flew                  
          helicopters for Era in the Gulf of Mexico.  His work at Era leads           
          us to conclude that as of February 4, 1996, petitioner was                  
          established in the trade or business of piloting helicopters.               
          This Court has held that a helicopter pilot is engaged in a                 
          different trade or business than an airline pilot.  Lee v.                  
          Commissioner, T.C. Memo. 1981-26, affd. 723 F.2d 1424 (9th Cir.             
          1984).  Prior to February 4, 1996, petitioner had never flown for           
          or been hired by an airline.  There is no evidence in the record            





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