George R. and Donelle C. Hawthorne - Page 15




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          in carrying on a trade or business.  An activity qualifies as a              
          trade or business if the taxpayer's primary purpose for engaging             
          in the activity is for income or profit and the activity is                  
          performed with continuity and regularity.  Commissioner v.                   
          Groetzinger, 480 U.S. 23, 35 (1987).  A hobby does not qualify as            
          a business.  Id.  Determining whether a taxpayer's activities                
          rise to the level which constitutes "carrying on a business"                 
          requires an examination of the facts in each case.  Higgins v.               
          Commissioner, 312 U.S. 212, 217 (1941).                                      
               In determining the nature of a taxpayer's activities with               
          respect to real property, courts consider the following factors:             
               the nature and purpose of the acquisition of the prop-                  
               erty and the duration of the ownership; the continuity                  
               of sales or sales-related activity over a period of                     
               time; the volume and frequency of sales; the extent to                  
               which the taxpayer or his agents have engaged in sales                  
               activities by developing or improving the property,                     
               soliciting customers, and advertising; and the substan-                 
               tiality of sales when compared to other sources of                      
               taxpayer's income. * * *  [Polakis v. Commissioner, 91                  
               T.C. 660, 670 (1988).]                                                  
               Although during the years at issue Mr. Hawthorne performed a            
          variety of services relating to certain of the properties, for               
          which he was not compensated, he did not sell, or advertise for              
          sale, any of those properties during those years.  Indeed, Mr.               
          Hawthorne had not decided throughout the years at issue and                  
          thereafter to the time of the trial in this case what he wanted              
          to do with the properties in question, although he preferred to              
          give them away to family members, rather than pay tax on any                 
          gains that he would realize if he sold or otherwise disposed of              
          them.  On the record before us, we find that petitioners have                

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