Karl and Birgit Jahina - Page 9




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               The first issue is whether the passive loss rules under                
          section 469 preclude petitioners from deducting real estate                 
          rental losses in the amounts of $128,168 for 1996 and $95,553 for           
          1997.  The specific issue is whether Mrs. Jahina qualifies as a             
          real estate professional under section 469(c)(7).3                          
               Petitioners contend that they are entitled to deduct their             
          losses from their real estate rental properties because Mrs.                
          Jahina was a real estate professional under section 469(c)(7),              
          and that petitioners’ rental properties were a trade or business            
          in which they materially participated.  Respondent maintains that           
          the real estate rental activities generating the net losses were            
          per se passive activities under section 469(c)(2) because Mrs.              
          Jahina did not establish that she was a real estate professional            
          pursuant to section 469(c)(7).  Respondent further maintains that           
          petitioners did not elect to treat the rental properties as one             
          activity under section 469(c)(7)(A), and, therefore, Mrs. Jahina            
          must qualify as a real estate professional with respect to each             




               3    Sec. 7491, in certain instances, places the burden of             
          proof on respondent with respect to examinations of returns                 
          commencing after July 22, 1998.  There is no evidence in the                
          record regarding the date the examination of petitioners’ returns           
          commenced.  Moreover, petitioners do not contend that the                   
          examination of their return commenced after July 22, 1998, or               
          that sec. 7491 is applicable in this case.  Even if sec. 7491 is            
          applicable, the Court decides this case without regard to the               
          burden of proof.                                                            





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