Jere J. and Paulette M. Solvie - Page 22

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          materially in the production by JJ & P Farms, Inc., of agricul-             
          tural commodities by performing petitioners’ farm-related activi-           
          ties with respect to, inter alia, processing hogs through that              
          barn.20  As we understand their position, petitioners contend               
          (1) that the 1995 claimed rent for petitioners’ 800-head capacity           
          hog barn represented fair market rent and (2) that petitioners              
          received compensation, which did not include such rent, for                 


               20We note that in McNamara I there is no indication that the           
          parties advanced, and the Court did not address, any argument               
          that, because the taxpayer-owners of the farmland in that case              
          materially participated within the meaning of sec. 1402(a)(1) in            
          the production of agricultural commodities as employees of their            
          wholly owned corporation and not in their individual capacities,            
          the analysis under sec. 1402(a)(1) should be different from the             
          analysis in Bot I and Hennen I, where the taxpayer-owners of the            
          farmland involved in those two cases materially participated                
          within the meaning of sec. 1402(a)(1) in the production of                  
          agricultural commodities in their individual capacities.  In                
          McNamara II, there is no indication that the taxpayers appealing            
          McNamara I advanced, and the Court of Appeals for the Eighth                
          Circuit did not address, any argument that the analysis under               
          sec. 1402(a)(1) with respect to such taxpayers should be any                
          different from the analysis with respect to the taxpayers appeal-           
          ing Bot I and Hennen I.                                                     
               In the instant case, neither petitioners nor respondent                
          advances any argument that the analysis under sec. 1402(a)(1)               
          should be different from the analysis in McNamara II because                
          petitioners materially participated within the meaning of sec.              
          1402(a)(1) in the production by JJ & P Farms, Inc., of agricul-             
          tural commodities as employees of JJ & P Farms, Inc., and not in            
          their individual capacities.  Indeed, petitioners rely solely on            
          the analysis in McNamara II to support their position in the                
          instant case.  Consequently, we shall not address whether our               
          analysis would be different in the instant case because petition-           
          ers materially participated within the meaning of sec. 1402(a)(1)           
          in the production of agricultural commodities by JJ & P Farms,              
          Inc., as employees of JJ & P Farms, Inc., and not in their                  
          individual capacities.                                                      




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