James Tinnell - Page 32




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          Pharmaceuticals, Inc., which later became a wholly owned                    
          subsidiary of Zila.  At the time of trial, Zila had over 200                
          employees and a market capitalization of approximately $200                 
          million.  The cream, which is now called Zylactin, is still on              
          the market as an over-the-counter treatment for herpes, and                 
          petitioner has received substantial royalties from his invention.           
               The record demonstrates that petitioner has realized profits           
          from other successful business ventures.  This factor favors                
          petitioner’s position.                                                      
                    6.  Petitioner’s History of Income or Loss                        
                    From the Activity                                                 
          A taxpayer’s history of income or loss with respect to any                  
          activity may indicate the presence or absence of a profit                   
          objective.  See Golanty v. Commissioner, 72 T.C. at 426; sec.               
          1.183-2(b)(6), Income Tax Regs.  The magnitude of the activity’s            
          losses in comparison with its revenues is an indication that the            
          taxpayer did not have a profit motive.  See Dodge v.                        
          Commissioner, T.C. Memo. 1998-89 (citing Burger v. Commissioner,            
          809 F.2d at 360), affd. without published opinion 188 F.3d 507              
          (6th Cir. 1999).  “[A] series of startup losses or losses                   
          sustained because of unforeseen circumstances beyond the control            
          of the taxpayer may not indicate a lack of profit motive.”  Kahla           
          v. Commissioner, T.C. Memo. 2000-127 (citing Engdahl v.                     
          Commissioner, 72 T.C. at 669; sec. 1.183-2(b)(6), Income Tax                
          Regs.).                                                                     





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