Lee D. and Marjorie L. Hustead - Page 8

                                        - 8 -                                         
          herein.  Petitioners cannot claim surprise or ignorance as to               
          the basis for the determinations.                                           
               Under the circumstances herein, we reject petitioners'                 
          request noting that, in any event, we can dispose of the case on            
          the merits based on the undisputed facts with the result that the           
          location of the burden of proof becomes irrelevant.                         
               Section 162(a)3 allows the deduction of "all the ordinary              
          and necessary expenses paid or incurred during the taxable year             
          in carrying on any trade or business".  However, section                    
          263(a)(1) provides that "No deduction shall be allowed for * * *            
          any amount paid out for new buildings or for permanent                      
          improvements or betterments made to increase the value of any               
          property or estate."                                                        
               The parties have stipulated that the activities of LM                  
          Development constituted a "business", but that is not                       
          determinative of deductibility.  As the Court of Appeals for the            
          Ninth Circuit stated in Madden v. Commissioner, 514 F.2d 1149,              
          1150 (9th Cir. 1975), revg. and remanding 57 T.C. 513 (1972)4:              
                    The statutes involved in this appeal are                          
               relatively clear.  Sections 162 and 212 allow a                        
               taxpayer to deduct many current expenses from ordinary                 

          3  Unless otherwise indicated, all section references are to                
          the Internal Revenue Code in effect for the taxable years before            
          the Court, and all Rule references are to the Tax Court Rules of            
          Practice and Procedure.                                                     
          4  Madden and its rationale were specifically accepted by                   
          this Court in Soelling v. Commissioner, 70 T.C. 1052, 1055-1056             
          (1978).                                                                     




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011