Vance Orpheus Bright, Jr. and Mary Frances Bright - Page 6




                                        - 5 -                                         
               In pertinent part, section 162(a) provides that “There shall           
          be allowed as a deduction all the ordinary and necessary expenses           
          paid or incurred during the taxable year in carrying on any trade           
          or business”.  The question is whether petitioners’ activities              
          that gave rise to the disputed deductions constituted a trade or            
          business during 1996.                                                       
               In one sense petitioners’ argument here is unusual.                    
          Generally, a taxpayer seeks to avoid his or her real estate                 
          activity’s being classified as a trade or business in order to              
          claim the benefit of lower capital gains rates on the sale or               
          disposition of real property.  See, e.g., Thompson v.                       
          Commissioner, 322 F.2d 122 (5th Cir. 1963).  Here, petitioners              
          claim that their real estate activities constituted a trade or              
          business.  The considerations in deciding whether a taxpayer’s              
          activities are a trade or business are well defined.  In Polakis            
          v. Commissioner, 91 T.C. 660, 669-670 (1988), we stated:                    
                    Determining whether a taxpayer’s activities rise to a             
               level which constitutes “‘carrying on a business’ requires             
               an examination of the facts in each case.” * * * Among the             
               tests that courts have come to rely on in divining the                 
               nature of the taxpayer’s activities with respect to real               
               estate are the following: the nature and purpose of the                
               acquisition of the property 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                         
               substantiality of sales when compared to other sources of              
               taxpayer’s income.  [Citations omitted.]                               







Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011