- 24 - We held above that petitioners failed to prove that they did not have unreported income in the amounts asserted by respondent. They have not proven that they did not receive that income, nor have they proven that it is not subject to self-employment tax. Petitioner husband received refunds for items, such as insurance and utilities, that he deducted as business expenses. The refunds are includable in petitioners' income and are subject to self-employment tax. An individual who is engaged in the business of selling real estate to customers may be classified as a real estate dealer. Sec. 1.1402(a)-4(a), Income Tax Regs. Rentals from real estate and the related deductions are excluded from net earnings subject to self-employment tax unless the rentals are received in the course of a taxpayer's trade or business as a real estate dealer. Sec. 1402(a)(1); Hopper v. Commissioner, 94 T.C. 542, 545 (1990); sec. 1.1402(a)-4(a), Income Tax Regs. Whether property is held by a taxpayer for investment or for sale to customers in the ordinary course of his trade or business is a question of fact. Cottle v. Commissioner, 89 T.C. 467, 486 (1987); Daugherty v. Commissioner, 78 T.C. 623, 628 (1982). As discussed below, we hold that petitioner husband was a dealer in real estate. Thus, the rentals are subject to self-employment tax. Sec. 1402(a)(1); Rockwell v. Commissioner, T.C. Memo. 1972- 133, affd. 512 F.2d 882 (9th Cir. 1975). Petitioners have failedPage: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
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