Paul and Pauline D. Kessler - Page 11

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               employed by the taxpayer.  The average period of                       
               customer use for the tractor-trailers exceeds 30 days.                 
               Under these facts, the use of the tractor-trailers by                  
               the taxpayer’s customers is incidental to their receipt                
               of personal services provided by the taxpayer.                         
               Accordingly, the services performed in the activity are                
               extraordinary personal services * * * and, * * *                       
               [thus], the activity is not a rental activity.                         
               In this case, petitioners are not engaged in an activity               
          which provides personal services to Pauline’s Concrete.                     
          Petitioners simply own and lease cement pumping equipment to                
          Pauline’s Concrete.  The lease is “net of all costs” to                     
          petitioners.15  While petitioners clearly provide personal                  
          services in their capacity as employees of Pauline’s Concrete               
          and, in their individual capacity, to construction contractors,             
          nonetheless, with respect to leasing equipment to Pauline’s                 
          Concrete, the record reflects no provision for services incident            
          to such leasing activities.  We hold that petitioners did not               
          provide extraordinary personal services within the meaning of               
          section 1.469-1T(e)(3)(v), Temporary Income Tax Regs., 53 Fed.              
          Reg. 5702 (Feb. 25, 1988).  Accordingly, the activity is not                
          excepted from the definition of a rental activity.                          
               Our opinion in Hairston v. Commissioner, T.C. Memo. 2000-              
          386, is instructive.  In Hairston, the taxpayers owned heavy                
          construction equipment in their own names which they leased to              

               15Under the lease, Pauline’s Concrete “shall pay all of the            
          costs associated with the acquisition and maintenance of the                
          leased property including the cost(s) of adequate insurance                 
          sufficient to exculpate * * * [petitioners] from any and all                
          liability.”                                                                 




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Last modified: May 25, 2011