- 9 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011