David Llewellyn and Kay Marie Rose - Page 16




                                       - 15 -                                         

               As to the question of substantiation, the Court finds on               
          this record that petitioners substantiated labor expenses of                
          $60,096 for 1995, $17,406 for 1996, and $41,960 for 1997.                   
          Therefore, in addition to the labor expenses respondent allowed             
          for each year in the notice of deficiency, the Court finds that             
          petitioners substantiated labor expenses of $11,624 for 1995,               
          $3,387 for 1996, and $21,355 for 1997.  The Court next considers            
          whether these additional labor expenses were related to                     
          construction of the Mach Buster airplane, in which event such               
          expenses would be capitalized, or whether these expenses were               
          incurred in connection with the air racing activities.                      
               Section 263(a)(1) provides generally that no deduction shall           
          be allowed for "Any amount paid out for new buildings or for                
          permanent improvements or betterments made to increase the value            
          of any property or estate."  The Treasury regulations interpret             
          this text by listing the following item as an example of a                  
          capital expenditure:  "The cost of acquisition, construction, or            
          erection of buildings, machinery and equipment, furniture and               
          fixtures, and similar property having a useful life substantially           
          beyond the taxable year."  Sec. 1.263(a)-2(a), Income Tax Regs.             
               Whether an expense is deductible under section 162(a) or               
          must be capitalized under section 263(a)(1) is a factual                    
          determination for which there is no controlling rule.  "[E]ach              
          case 'turns on its special facts'", and "the cases sometimes                
          appear difficult to harmonize."  INDOPCO, Inc. v. Commissioner,             





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