Louis A. Filios and Estate of Emma L. Filios, Deceased, Louis A. Filios, Executor - Page 19

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          petitioner's control, such as the discovery that Luna Rutera                 
          could not give birth, had not occurred.  See Burger v.                       
          Commissioner, 809 F.2d 355 (7th Cir. 1987), affg. T.C. Memo.                 
          1985-523 (taxpayer did not show that activity would have been                
          profitable if the unforeseen circumstance had not occurred).                 
               Petitioners contend that this case is like Patterson v.                 
          United States, 198 Ct. Cl. 543, 459 F.2d 487, 493 (1972), and                
          Metcalf v. Commissioner, T.C. Memo. 1963-277 (profit motive found            
          despite 24 years of losses).  We disagree.  The taxpayer in                  
          Patterson had a farm on which he initially tried to build a herd             
          of Angus cattle.  When that activity was unsuccessful, he                    
          switched to growing tobacco.  Petitioner has not abandoned his               
          horse racing and breeding activity.                                          
               The taxpayers in Metcalf operated a commercial dairy.  To               
          improve milk production, the taxpayers tried to develop three                
          different purebred breeds of cattle (Brown Swiss, Angus, and                 
          Charolais).  The taxpayers abandoned this attempt when it proved             
          to be unsuccessful.  Petitioner did not abandon his unprofitable             
               This factor favors respondent.                                          
               7.   Amount of Occasional Profits, if Any                               
               We should consider the amount of any occasional profits the             
          taxpayer earned from the activity in relation to the amount of               
          losses incurred, the amount of the taxpayer's investment, and the            
          value of the assets used in the activity.  Sec. 1.183-2(b)(7),               
          Income Tax Regs.  Petitioner did not make a profit in any year               

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