Utah Jojoba I Research, William G. Kellen, Tax Matters Partner - Page 38

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          differentiate those that are legitimate from those that are                  
          merely designed to shelter the income of passive investors.  See,            
          e.g., Spellman v. Commissioner, supra; Diamond v. Commissioner,              
          supra; Levin v. Commissioner, supra; Green v. Commissioner,                  
          supra.  For an investing partnership successfully to claim                   
          research and experimental deductions, there must be a realistic              
          prospect that the technology to be developed will be exploited in            
          a trade or business of the partnership claiming deductions under             
          section 174.  See Diamond v. Commissioner, supra.  Mere legal                
          entitlement to enter into a trade or business does not satisfy               
          this test.  Instead, "The legal entitlement must be backed by a              
          probability of the firm's going into business."  Levin v.                    
          Commissioner, 832 F.2d at 407.                                               
               In making this determination, we consider such facts and                
          circumstances as the intentions of the parties to the research               
          and development contract, the amount of capitalization retained              
          by the partnership during the research and development contract              
          period, the exercise of control by the partnership over the                  
          person or organization conducting the research and development,              
          the existence of an option to acquire the technology developed by            
          the organization conducting the research and development and the             
          likelihood of its exercise, the business activities of the                   
          partnership during the years in question, and the business                   
          experience of the partners.  See Cactus Wren Jojoba, Ltd. v.                 





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