Melvin J. Laney and Carolyn A. Laney - Page 37

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            C. Loss From Trade or Business                                                            
                  As a result of subsections (c) and (d) of section 172, the                          
            basic category of an individual’s losses that may constitute net                          
            operating losses is losses from the conduct of a trade or                                 
            business.  In general, expenditures paid or incurred in preparing                         
            to enter a trade or business must be capitalized, even if those                           
            expenditures are of a sort that ordinarily would be currently                             
            deductible if the taxpayer had already entered the trade or                               
            business.  Hardy v. Commissioner, 93 T.C. 684, 687 (1989), affd.                          
            on this issue and remanded to consider a new issue per order                              
            (10th Cir., Oct. 29, 1990).                                                               
                  Because we conclude, for reasons described infra, that (1)                          
            R.K. was not a part of Laney’s then-ongoing consulting trade or                           
            business, and (2) R.K. had not yet gone into operation when Laney                         
            suffered his losses therefrom, petitioners are not permitted to                           
            carry over Laney’s R.K. losses as a net operating loss to the                             
            years in issue.                                                                           
                  Whether a transaction is an expansion of an existing                                
            business, or creates a new and distinct trade or business depends                         
            on the facts and circumstances.  In First Security Bank of Idaho,                         
            N.A. v. Commissioner, 63 T.C. 644 (1975), affd. 592 F.2d 1050                             
            (9th Cir. 1979), this Court concluded that when First Security                            
            Bank of Idaho and First Security Bank of Utah initiated consumer                          
            credit card plans, the initial expenses were expenses of                                  





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