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determined that they were "actively engaged in farming",
respondent's position that they were not actively engaged in the
trade or business of farming cannot be considered substantially
justified. In addition they argue that respondent's concession
of the underlying deficiencies is in effect tantamount to a
concession that his position was not substantially justified.
We disagree with petitioners on both points. As pointed out
by respondent, the "determination" made by the USDA through the
Cascade County ASCS that petitioners were "actively engaged in
farming" is not a determination for Federal income tax purposes
that petitioners were actively engaged in a trade or business for
purposes of section 162(a). It is clear to us that different
criteria are taken into account in making such determinations.
For example, a profit motive is necessary to support a deduction
claimed under section 162. Nothing in the record suggests that a
profit motive is necessary to qualify for CRP payments.
Furthermore, the fact that the Commissioner ultimately concedes
all or part of a case is not sufficient to establish that the
Commissioner’s position was unreasonable, Sokol v. Commissioner,
92 T.C. 760, 765-767 (1989); Sher v. Commissioner, 89 T.C. 79, 87
(1987), affd. 861 F.2d 131 (5th Cir. 1988), but is merely a
factor to be considered, Estate of Perry v. Commissioner, 931
F.2d 1044, 1046 (5th Cir. 1991).
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