George Kukes and Margaret Kukes - Page 9

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            because petitioner’s own statements with regard to his activities                             
            make it clear that his expenditures were incurred in organizing,                              
            developing, or starting up a business, we need not choose one                                 
            rationale over the other.5  Petitioner’s expenditures would be                                
            nondeductible under either analysis.6                                                         
                  We therefore agree with respondent that the loss shown on                               
            petitioners' Schedule C for 1992 must be disallowed.7                                         
            Addition to Tax and Penalties                                                                 
                  Section 6651 provides that in case of failure to file a                                 
            timely return (including extensions), unless it is shown that                                 
            such failure is due to reasonable cause and not due to willful                                
            neglect, there shall be added to the amount required to be shown                              
            as tax on such return 5 percent of the amount of such tax if the                              
            failure is for not more than 1 month.  Petitioners did not                                    
            request an extension.  Their 1992 income tax return was due April                             
            15, 1993, but was filed on April 27, 1993.  Thus, petitioners are                             

                  5  Petitioner has characterized his Presto activities as                                
            “research and development”, apparently in an attempt to bring                                 
            them under sec. 174.  Even if we were to find that his activities                             
            came within that rubric (which we do not), petitioner is not                                  
            helped.  He has not demonstrated a “realistic prospect” of                                    
            subsequently entering a business in connection with the fruits of                             
            the research; i.e., by manifesting both the objective intent to                               
            enter such a business and the capability of doing so.  Kantor v.                              
            Commissioner, 998 F.2d 1514, 1518 (9th Cir. 1993), affg. in part                              
            and revg. in part T.C. Memo. 1990-380.                                                        
                  6  See also Pino v. Commissioner, T.C. Memo. 1987-28.                                   
                  7  Respondent allowed the mortgage interest and real estate                             
            taxes on petitioners’ residence, plus State taxes and                                         
            contributions, as Schedule A deductions in the notice of                                      
            deficiency.                                                                                   


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