Timothy Thomas and Janice Kathleen Kuberski - Page 17




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               Petitioners devote considerable attention in their brief to            
          arguing that the regulations set an impossible mandate for                  
          profitability in the horse racing and breeding industry.                    
          Specifically, petitioners point to the presumption under section            
          1.183-1(c), Income Tax Regs., that a horse breeding or racing               
          activity is engaged in for profit if its gross income exceeds               
          deductions for any 2 of 7 consecutive years.  Petitioners                   
          emphatically argue that it is only possible to make a profit once           
          in 25 years.  Although petitioners seem to think otherwise, an              
          activity’s history of losses is not an exclusive factor, nor is             
          it an impossible obstacle to overcome in successfully proving a             
          profit motive in horse breeding activities.  See Rinehart v.                
          Commissioner, T.C. Memo. 2002-9; Routon v. Commissioner, T.C.               
          Memo. 2002-7; Jordan v. Commissioner, T.C. Memo. 2000-206; Yancy            
          v. Commissioner, T.C. Memo. 1984-431; Ellis v. Commissioner, T.C.           
          Memo. 1984-50; Coe v. Commissioner, T.C. Memo. 1974-129; Deerman            
          v. Commissioner, T.C. Memo. 1974-84; Foster v. Commissioner, T.C.           
          Memo. 1973-13.  It is a persuasive factor in this case, however,            
          because of the amount of the losses, the length of the period of            
          losses, and the absence of offsetting considerations.                       
          We conclude that petitioner’s horse breeding and racing operation           
          was not an activity engaged in for profit.                                  
               Section 6651(a)(1) imposes an addition to tax for failure to           
          file a required return on the date prescribed, unless it is shown           






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