- -29 v. Commissioner, 66 T.C. 652, 673 (1976), affd. 601 F.2d 734 (5th Cir. 1979); sec. 1.166-5(b), Income Tax Regs. Whether the taxpayer is engaged in a trade or business is a question of fact. Dorminey v. Commissioner, 26 T.C. 940, 945 (1956). In Whipple v. Commissioner, 373 U.S. 193 (1963), the Supreme Court determined that a taxpayer, in order to obtain a business bad debt deduction, must establish that he was in a trade or business and that the loss from the worthless debt is proximately connected with such trade or business. The Supreme Court in that case stated that where the only return is that of an investor, the taxpayer has not met his burden of demonstrating that he is engaged in a trade or business. Whipple v. Commissioner, supra at 202; see also Millsap v. Commissioner, 387 F.2d 420 (8th Cir. 1968), affg. 46 T.C. 751 (1966). Petitioner has not satisfied his burden of proving that he was in the business of lending money. Petitioner claimed the $70,000 loss for a restaurant newsletter business, but admitted at trial that the note had nothing to do with this business. Petitioner testified that he had made loans "many times before", but could recall only one other specific instance where he loaned money. Petitioner further testified that the loan was an "investment". Petitioner did not get a financial statement from Mr. Kluzak, though he testified that he received an oral credit reference from a credit bureau in Fargo. Petitioner asked for noPage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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