Cactus Wren Jojoba, Ltd., Cecil R. Almand, Tax Matters Partner - Page 28

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            1987); Green v. Commissioner, supra; Spellman v. Commissioner,                               
            T.C. Memo. 1986-403, affd. 845 F.2d 148 (7th Cir. 1988).  The                                
            controlling inquiry, where a partnership is claiming deductions                              
            under section 174, is whether there is a realistic prospect that                             
            the technology to be developed will be exploited in a trade or                               
            business of the entity in question.  See Diamond v. Commissioner,                            
            supra.  Mere legal entitlement to enter into a trade or business                             
            does not satisfy this test.  Instead, "The legal entitlement must                            
            be backed by a probability of the firm's going into business."                               
            Levin v. Commissioner, 832 F.2d at 407.                                                      
                  In making this determination, we consider such facts and                               
            circumstances as the intentions of the parties to the research                               
            and development contract, the amount of capitalization retained                              
            by the partnership during the research and development contract                              
            period, the exercise of control by the partnership over the                                  
            person or organization conducting the research and development,                              
            the existence of an option to acquire the technology developed by                            
            the organization conducting the research and development and the                             
            likelihood of its exercise, the business activities of the                                   
            partnership during the years in question, and the business                                   
            experience of the partners.  See Glassley v. Commissioner, T.C.                              
            Memo. 1996-206; Mach-Tech, Ltd. Partnership v. Commissioner, T.C.                            
            Memo. 1994-225, affd. without published opinion 59 F.3d 1241 (5th                            
            Cir. 1995); Stankevich v. Commissioner, T.C. Memo. 1992-458;                                 
            Stauber v. Commissioner, T.C. Memo. 1992-128.                                                




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