Barry H. and Marilyn S. Scheiner - Page 6

                                           - 6 -                                             
                                          OPINION                                            
                Petitioners bear the burden of proving that respondent's                     
          determination is erroneous.  Rule 142(a); Welch v. Helvering, 290                  
          U.S. 111, 115 (1933).                                                              
                Section 162 permits deductions for all the ordinary and                      
          necessary expenses paid or incurred during the taxable year in                     
          carrying on a trade or business.  Section 212 permits deductions                   
          for all the ordinary and necessary expenses paid or incurred                       
          during the taxable year for the production of income.  Section                     
          469, however, limits the deductions for losses from a "passive                     
          activity".  Chapin v. Commissioner, T.C. Memo. 1996-56.  In                        
          Mordkin v. Commissioner, T.C. Memo. 1996-187 (a case involving an                  
          owner of a condominium at Snowmass Village, Colorado), we                          
          described the operation of section 469 as follows:                                 
                the passive activity loss for the taxable year is                            
                generally the amount, if any, by which the passive                           
                activity deductions for the taxable year exceed the                          
                passive activity gross income for such year.  Sec.                           
                469(d)(1); sec. 1.469-2T(b)(1), Temporary Income Tax                         
                Regs., 53 Fed. Reg. 5711 (Feb. 25, 1988).                                    
                     As pertinent here, section 469(c) defines the term                      
                "passive activity" to include:  (1) Any activity which                       
                involves the conduct of any trade or business and in                         
                which the taxpayer does not materially participate,                          
                sec. 469(c)(1), and (2) any rental activity without                          
                regard to whether or not the taxpayer materially                             
                participates in the activity, sec. 469(c)(2), (4).                           
                     For purposes of section 469(c)(1), the term "trade                      
                or business" is defined in section 469(c)(6) to include                      
                any activity in connection with a trade or business or                       
                any activity with respect to which expenses are                              
                allowable as a deduction under section 212.                                  
                     For purposes of section 469(c)(2), the term                             
                "rental activity" is defined in section 469(j)(8) as                         



Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011