Eugene J. Phillips and Barbara A. Phillips - Page 6

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          respondent's position on any of the factors provided pursuant to            
          section 1.183-2(b), Income Tax Regs., (5) the Court found for               
          petitioners with regard to all of the relevant factors pursuant             
          to section 1.183-2(b), Income Tax Regs., and (6) respondent knew,           
          or should have known, that the facts in the instant case                    
          supported petitioners' position.                                            
               Respondent, on the other hand, contends that petitioners               
          have offered no specific details that establish an overriding               
          weakness in respondent's circumstantial case or any legal                   
          authority with which respondent's case is clearly inconsistent.             
          Additionally, respondent contends that petitioners are                      
          essentially arguing that, because petitioners won the case,                 
          respondent's position was not substantially justified.                      
               Section 1.183-2(b), Income Tax Regs., provides a                       
          nonexclusive list of factors to be considered in deciding whether           
          an activity is engaged in for profit.  As stated in our prior               
          opinion, we considered those factors in reaching a decision on              
          the merits in the instant case.  No single factor, and not even             
          the existence of a majority of such factors, is controlling.                
          Keanini v. Commissioner, 94 T.C. 41, 47 (1990).                             
               We conclude that respondent's position was substantially               
          justified.  Among the facts in the record that bore negatively on           
          petitioners' claimed profit motive were the following:  (1)                 
          Petitioners had no financial plan or written budget; (2)                    
          petitioners went bankrupt; (3) petitioner Eugene J. Phillips had            




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