David M. and Teri L. Saykally - Page 22

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          are sufficiently substantial and regular to constitute a trade or            
          business” is a factual determination.  I-Tech R&D Ltd. Pship. v.             
          Commissioner, supra; see Green v. Commissioner, 83 T.C. 667, 687             
          (1984).  However, in no event is a deduction appropriate where               
          the taxpayer acts solely in an investor capacity.  Green v.                  
          Commissioner, supra; see Higgins v. Commissioner, 312 U.S. 212               
          (1941); I-Tech R&D Ltd. Pship. v. Commissioner, supra; Universal             
          Research & Dev. Pship. No. 1, et al. v. Commissioner, T.C. Memo.             
          1991-437.                                                                    
               Whether a taxpayer has a realistic prospect of using the                
          fruits of R&D expenditures in a future business of his own                   
          involves a two-part test.  “[A] taxpayer demonstrates such a                 
          [realistic] prospect by manifesting both the objective intent to             
          enter such a business and the capability of doing so.”16   Kantor            
          v. Commissioner, 998 F.2d 1514, 1518 (9th Cir. 1993), affg. in               
          part and revg. in part T.C. Memo. 1990-380; see Zink v. United               
          States, 929 F.2d 1015 (5th Cir. 1991); Spellman v. Commissioner,             
          supra; Levin v. Commissioner, 832 F.2d 403, 406-407 (7th Cir.                
          1987), affg. 87 T.C. 698 (1986).  Generally, in determining                  
          whether there is a “realistic prospect,” we look solely to the               
          period during which the expenditures were incurred.  Kantor v.               

               16A taxpayer manifests his “capability” to enter into a                 
          business by his technical expertise to market the new technology             
          and his financial ability to conduct the business.  Scoggins v.              
          Commissioner, 46 F.3d 950, 953 (9th Cir. 1995), revg. T.C. Memo.             
          1991-263.                                                                    





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