Umit Tarakci - Page 15




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          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 in            






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