Earl E. Cloud, Jr. and Sheila S. Cloud - Page 12




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          still held title to the equipment and which remained in                     
          existence at least until July 1, 1988.6                                     
               Petitioners argue that even if the manufacturing equipment             
          was idle after petitioner acquired it, he nevertheless should be            
          considered to be in the trade or business of metal fabrication,             
          because he continued, albeit unsuccessfully, to pursue new work             
          orders until the equipment was repossessed by NAC in the summer             
          of 1990.  Apart from petitioner’s self-serving and                          
          uncorroborated testimony, however, there is no evidence of such             
          business activity.  Petitioner’s testimony does not credibly                
          establish that he was involved in his personal capacity in the              
          metal fabrication business with continuity or regularity, with              
          the primary purpose of producing income or profit.  Cf.                     
          Commissioner v. Groetzinger, 480 U.S. at 35.  To the contrary,              
          petitioner testified that during the years at issue, he was so              
          busy in his family law practice that petitioners were unable                
          even to file timely tax returns.                                            
               Having failed to establish that they were engaged in the               
          trade or business of manufacturing vending machines, petitioners            
          have failed to show that the depreciable assets were used in a              



               6 That Pacer remained in business on July 1, 1988, is                  
          indicated by the July 1, 1988, asset sale agreement between Pacer           
          and Venco, which states that Pacer “contemplates the cessation of           
          all business operations, and the potential of filing for                    
          protection under the Bankruptcy Code of the United States of                
          America.”                                                                   





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