Richard J. and Phyllis Bot - Page 15




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            trade or business must be ascertained from a review of all the                             
            relevant facts and circumstances.  Commissioner v. Groetzinger,                            
            supra (“in the absence of guidance, * * * We would defer * * * to                          
            the Code’s normal focus on what we regard as a common-sense                                
            concept of what is a trade or business”).                                                  
                  Neither party addressed directly whether petitioners’ rental                         
            of their farm to the sons (rental activity), standing alone,                               
            constituted a trade or business for purposes of the self-                                  
            employment tax.  However, respondent appears to have accepted the                          
            proposition that income generated by petitioners’ rental activity                          
            is not subject to self-employment tax, presumably because of the                           
            provisions of section 1402(a)(1).12  Consequently, we focus our                            
            analysis on petitioners’ activities with respect to MCP in order                           
            to decide whether petitioners were engaged in a trade or business                          

                  12Sec. 1402(a)(1) provides that excludable farm rental                               
            income includes rent paid in crop shares.  Sec. 1.1402(a)-4,                               
            Income Tax Regs., provides:                                                                
                  Rentals paid in crop shares include income derived by                                
                  an owner or lessee of land under an agreement entered                                
                  into with another person pursuant to which such other                                
                  person undertakes to produce a crop or livestock on                                  
                  such land and pursuant to which (1) the crop or                                      
                  livestock, or the proceeds thereof, are to be divided                                
                  between such owner or lessee and such other person, and                              
                  (2) the share of the owner or lessee depends on the                                  
                  amount of the crop or livestock produced.  * * *                                     
            Presumably because the sons leased petitioners’ farm during 1994                           
            and 1995 and paid petitioners a portion of what was produced on                            
            the farm as rent, respondent did not determine that the income                             
            petitioners reported as farm rental income on Form 4835 was                                
            subject to self-employment tax.                                                            





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