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in the activity) for such year. Mr. Deitch testified that he
participated in petitioners' cattle activity, on average, about
1-1/2 hours day. When his daily participation is multiplied by
365, it is well over 500 hours a year, more than that of
petitioners.
At trial there was some testimony and cross-examination
suggesting that Mr. Deitch did not contribute as many hours to
the activity as that to which he testified. On the other side of
the scale, there was testimony and evidence suggesting that
petitioners' logs exaggerate the number of hours they contributed
to the activity. The result is that the Court finds from a
preponderance of the evidence that petitioners' level of
participation in their cattle activity did not exceed Mr.
Deitch's day-to-day participation in the activity in either year.
Petitioners do not meet the requirements of Test 3.
Test 7
Although petitioners have not met the requirements of either
of the tests on which they relied in their trial memorandum and
at trial, there is an additional test under which they might yet
qualify. Based on all the facts and circumstances, if
petitioners nevertheless participated in the Limousin cattle
activity on a "regular, continuous, and substantial" basis during
such year, they have materially participated even if they do not
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