John Shackelford Fairbanks - Page 8

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          the activity may appreciate in value; (5) the success of the                
          taxpayer in carrying on other similar or dissimilar activities;             
          (6) the taxpayer's history of income or losses with respect to              
          the activity; (7) the amount of occasional profits, if any, which           
          are earned; (8) the financial status of the taxpayer; and (9)               
          elements of personal pleasure or recreation.  No single factor is           
          controlling, but rather it is an evaluation of all the facts and            
          circumstances in the case, taken as a whole, which is                       
          determinative.  See Weber v. Commissioner, 103 T.C. 378, 387                
          (1994), affd. per curiam 60 F.3d 1104 (4th Cir. 1995).                      
               Petitioner alleges that he conducted his consulting activity           
          in a businesslike manner, but this allegation is belied by the              
          facts.  We note that (1) petitioner did not keep                            
          contemporaneously written business or marketing plans, (2)                  
          petitioner did not keep income or expense projections for his               
          consulting activity and failed to keep books and records                    
          detailing Fairbanks' financial information, and (3) petitioner              
          failed to maintain a separate checking account or separate                  
          finances for his consulting activity during the year in issue.1             
               Additionally, though petitioner was aware that Fairbanks had           
          generated no gross receipts for the 1994, 1995, and 1996 tax                
          years, petitioner did not appreciably change his method of                  

          1    Petitioner started a commercial checking account for                   
          Fairbanks in 1996.                                                          

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