Gary W. and Darlene E. White - Page 10

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                    Taxpayers disagree with the disallowance.                         
               Taxpayers furnished the Service numerous schedules                     
               supported by affidavits and receipts documenting that                  
               all losses in question were allowed due to material                    
               participation under Treas. Reg. 1.469-5T(a)(1) and                     
               1.469-5T(a)(3).                                                        
                    The Service’s primary rebuttal to abundance of                    
               documentation has been that it is not possible for the                 
               husband and wife, i.e., taxpayers Gary & Darlene White,                
               to have worked a combined total of 18 hours in any                     
               given day.  Apparently the most the Service believes                   
               that 2 people can work in one day is 16 hours!                         
               Taxpayers contend that the Service’s position is                       
               unreasonable and without any authoritative support.                    
          Discussion12                                                                
               Generally, the Commissioner’s determinations are presumed              
          correct, and the taxpayer bears the burden of proving that those            
          determinations are erroneous.  Rule 142(a); Welch v. Helvering,             
          290 U.S. 111, 115 (1933).                                                   
               Section 469 generally disallows for the taxable year passive           
          activity losses incurred by individual taxpayers.  Sec.                     
          469(a)(1).  A passive activity loss is the amount by which the              
          aggregate losses from all passive activities for the taxable year           
          exceed the aggregate income from all passive activities for such            
          year.  Sec. 469(d)(1)(A).  A passive activity is any trade or               
          business in which the taxpayer does not materially participate.             
          Sec. 469(c)(1).  The term passive activity includes any rental              
          activity regardless of whether the taxpayer materially                      

               12  We decide the issue in this case without regard to the             
          burden of proof under sec. 7491(a) because the issue is                     
          essentially one of law.                                                     





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