Eugene J. Phillips and Barbara A. Phillips - Page 7

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          substantial income that was sheltered from the losses from the              
          activity in issue; (4) certain expenses taken by petitioners were           
          not farm related; (5) petitioners' only records on their horses'            
          bloodlines were registration applications; and (6) petitioners              
          had a consistent history of losses during 1987 through 1993.                
               From the foregoing facts, a reasonable person could infer              
          that petitioners' horse activity was not entered into for profit.           
          It was not until petitioners testified at trial and presented               
          other persuasive evidence to overcome the negative inferences of            
          such facts that petitioners were able to prevail.  Consequently,            
          in the instant case, we conclude that respondent had a reasonable           
          basis in fact and law for the position that petitioners did not             
          have an actual and honest profit objective.                                 
               As we have concluded that respondent's position was                    
          substantially justified, we need not consider the issue of                  
          whether the amount of attorney's fees claimed by petitioners is             
          reasonable.                                                                 
               To reflect the foregoing,                                              

                                                  An appropriate order                
                                             will be issued.                          












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