Jerome J. and Beatrice A. Mack - Page 29

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          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 no           






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