- 28 - Although petitioners permitted the 5401-9 S. Broadway property to be used for certain events during 1992 and 1993, we nevertheless conclude, based on our review of all the relevant facts and circumstances, that petitioners did not actually operate a restaurant/nightclub facility for profit during those years.9 Consequently, we hold that the Schedule C deductions at issue in this case, including those that gave rise to the contested NOLs, were not incurred by petitioners in carrying on an existing Schedule C trade or business and, therefore, are not deductible under section 162(a).10 III. Capitalization of Production Costs Under Section 263A Respondent contends that, even if we concluded that petitioners operated a restaurant and nightclub during 1992 and 1993, section 263A required petitioners to capitalize those expenses they deducted on their Schedules C and E for 1990 through 1993 that qualify as production costs under section 263A. Petitioners contend, however, that respondent did not determine 9In addition, expenses relating to the startup of a business that are incurred before that new business is functioning are not deductible under either sec. 162 or 212. Sec. 195; Hardy v. Commissioner, 93 T.C. 684, 687-693 (1989). 10On brief, respondent concedes that, if and to the extent petitioners’ claimed 1992 and 1993 Schedule C expenses are substantiated, 25 percent of such “Schedule C expenses” are allocable to the portion of the 5401-9 S. Broadway building used by petitioner for rental purposes and may be deducted as Schedule E expenses by petitioners under sec. 212, subject to the passive loss limitation of sec. 469.Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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