Oliver W. and Edna D. Wilson - Page 28




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               Although petitioners permitted the 5401-9 S. Broadway                  
          property to be used for certain events during 1992 and 1993, we             
          nevertheless conclude, based on our review of all the relevant              
          facts and circumstances, that petitioners did not actually                  
          operate a restaurant/nightclub facility for profit during those             
          years.9  Consequently, we hold that the Schedule C deductions at            
          issue in this case, including those that gave rise to the                   
          contested NOLs, were not incurred by petitioners in carrying on             
          an existing Schedule C trade or business and, therefore, are not            
          deductible under section 162(a).10                                          
          III. Capitalization of Production Costs Under Section 263A                  
               Respondent contends that, even if we concluded that                    
          petitioners operated a restaurant and nightclub during 1992 and             
          1993, section 263A required petitioners to capitalize those                 
          expenses they deducted on their Schedules C and E for 1990                  
          through 1993 that qualify as production costs under section 263A.           
          Petitioners contend, however, that respondent did not determine             


               9In addition, expenses relating to the startup of a                    
          business that are incurred before that new business is                      
          functioning are not deductible under either sec. 162 or 212.                
          Sec. 195; Hardy v. Commissioner, 93 T.C. 684, 687-693 (1989).               
               10On brief, respondent concedes that, if and to the extent             
          petitioners’ claimed 1992 and 1993 Schedule C expenses are                  
          substantiated, 25 percent of such “Schedule C expenses” are                 
          allocable to the portion of the 5401-9 S. Broadway building used            
          by petitioner for rental purposes and may be deducted as Schedule           
          E expenses by petitioners under sec. 212, subject to the passive            
          loss limitation of sec. 469.                                                





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