- 22 - 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.Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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