- 15 - mean the trade or business of the partnership). To gain entitlement to the “incidental” exception, petitioner must pass a three-part test. The first part requires petitioner to own an interest in Aeternum during 1993. Petitioner was a 50-percent owner of Aeternum from October of 1990 until the partnership was effectively dissolved in August of 1993. The second part requires a finding that the equipment was predominantly used by Aeternum during 1993 or during at least two of the previous 5 taxable years. The evidence shows that Aeternum relied on Cilena’s equipment to manufacture products for the period 1990 through April of 1993 and that the equipment was an integral part of the partnership business. The final part requires that petitioner’s gross rental income from the equipment leasing activity be less than 2 percent of the lesser of the unadjusted basis of the equipment and the fair market value of the equipment. Petitioner reported zero gross rental income from the equipment for 1993, as well as for the previous taxable years during which the equipment lease was in effect. The evidence in the record reflects that the equipment had an unadjusted basis and fair market value above zero. Respondent, who carries the burden of proof as to this issue, has failed to present evidence that petitioner received gross rental income and has also failed to establish the unadjusted basis or fair market value of the equipment. We hold that the “incidental” exception set forth inPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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