Robert Griffin and Julia Griffin - Page 9




                                        - 9 -                                         
               Petitioner testified that petitioners owned 100 percent of             
          all but one of the 21 S corporations listed on the Schedule E               
          attached to their 1995 tax return and that all these S                      
          corporations were involved in real-estate development or                    
          management activities.  Petitioner offered no testimony, and the            
          record otherwise contains no evidence, regarding Creekside Manor,           
          listed as a construction business on the Schedules C attached to            
          petitioners’ 1995 and 1996 returns, or Citation Skymaster, listed           
          as a construction business on the Schedule C attached to                    
          petitioners’ 1996 return.                                                   
               The sparse evidence introduced by petitioners would not be             
          “sufficient upon which to base a decision on the issue”, H. Conf.           
          Rept. 105-599, supra at 240, 1998-3 C.B. at 994, as to whether              
          petitioners were individually engaged in a trade or business,               
          within the meaning of section 162, with respect to which the tax            
          payments would represent ordinary and necessary expenses.4  In              
          the first instance, assuming for sake of argument that                      
          petitioners devoted significant time and energy to the many S               
          corporations that they owned, such activity would not necessarily           
          constitute a trade or business of petitioners.  See Whipple v.              
          United States, 373 U.S. 193 (1963); Bell v. Commissioner, 200               
          F.3d 545, 547 (8th Cir. 2000), affg. T.C. Memo. 1998-136.  The              


               4 Even if the burden of proof were placed on respondent, we            
          would decide the issue in his favor based on the preponderance of           
          the evidence.                                                               





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