P & X Markets, Inc. - Page 3

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          proprietorship.  Petitioner argues that it qualifies under                  
          section 104(a)(2) because it is a “small, individually-owned                
          ‘family business’ that has been incorporated for liability,                 
          insurance and perhaps tax purposes”.  Petitioner’s objection is             
          supported by the affidavit of Mr. Magaddino.                                
               We hold for respondent.  Unless otherwise stated, section              
          references are to the Internal Revenue Code in effect for the               
          year in issue.  Rule references are to the Tax Court Rules of               
          Practice and Procedure.  Dollar amounts are rounded to the                  
          nearest dollar.                                                             
                                     Background2                                      
               Petitioner is a corporation that was incorporated on                   
          August 2, 1947.  It owns and operates a retail grocery store in             
          San Leandro, California.  When it petitioned the Court, its                 
          principal place of business was in Danville, California.                    
               On December 18, 1989, petitioner filed a lawsuit in the                
          Superior Court of the State of California against the Defendants.           
          The Complaint set forth six causes of action.  The first cause              
          alleged that some of the Defendants had breached their lease with           
          petitioner by overcharging it $101,041.  The Complaint prayed for           
          return of this overcharge, as well as statutory attorney's fees             


               2 The “facts” presented in this Opinion are stated solely              
          for purposes of deciding the motion and are not findings of fact            
          for this case.  Fed. R. Civ. P. 52(a); Sundstrand Corp. v.                  
          Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965                    
          (7th Cir. 1994).                                                            




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