Earl E. Cloud, Jr. and Sheila S. Cloud - Page 8




                                        - 8 -                                         
                                       OPINION                                        
               Section 162 allows a deduction for all the ordinary and                
          necessary expenses paid or incurred while carrying on a trade or            
          business.  Section 167(a) allows a depreciation deduction for               
          property used in the trade or business or held for the production           
          of income.                                                                  
               For an activity to constitute a trade or business, it is               
          well settled that “the taxpayer must be involved in the activity            
          with continuity and regularity and that the taxpayer’s primary              
          purpose for engaging in the activity must be for income or                  
          profit.”  Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987).              
          To determine whether petitioners are carrying on a trade or                 
          business requires an examination of the facts.  See Higgins v.              
          Commissioner, 312 U.S. 212, 217 (1941).  Petitioners bear the               
          burden of proof.  See Rule 142(a); Welch v. Helvering, 290 U.S.             
          111, 115 (1933).                                                            
               Petitioners claim that they were engaged in the trade or               
          business of manufacturing vending machines.3  It is undisputed,             
          however, that there was no significant manufacturing activity               
          after February 1988, when the manufacturing equipment was                   
          relocated from Huntsville to Brownsboro and work on the Ford                



               3 Although petitioners’ Schedules C for taxable years 1988,            
          1989, and 1990 list the business as “equipment rental”,                     
          petitioners have not argued at trial or on brief that they were             
          ever engaged in such a trade or business.                                   





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