James Tinnell - Page 9

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          petitioner’s mining activity expenses as set forth in his answer            
          was the same position asserted in the notices of deficiency;                
          i.e., the expenses must be disallowed because of section 183 or,            
          alternatively, because petitioner failed to establish they were             
          deductible under section 162.                                               
               Petitioner’s motion focuses on respondent’s litigating                 
          position under section 183 with respect to respondent’s                     
          disallowance of petitioner’s mining expense deductions.6  In his            
          response to petitioner’s motion, respondent asserts that he had a           
          reasonable basis in fact and law to disallow the deductions under           
          section 183.  Although respondent also alleges that petitioner              
          fails to satisfy certain requirements of section 7430, we shall             
          confine our analysis to the section 183 issue because it disposes           
          of petitioner’s entire claim, making it unnecessary to address              
          other issues raised by respondent.                                          
               In Tinnell I, respondent determined that petitioner had not            
          engaged in his mining activity with the profit objective required           
          by section 183.  Whether the requisite profit objective exists is           
          a question of fact that must be determined after considering all            
          the relevant facts and circumstances.  Golanty v. Commissioner,             
          72 T.C. at 426.                                                             

               6The sec. 162 issue was resolved by the parties prior to               

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