Assaf F. Al Assaf and Rehab Assaf - Page 8

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          regulations are vague, they do not allow a post-event “ballpark             
          guesstimate”.  Fowler v. Commissioner, T.C. Memo. 2002-223.                 
               In testimony and exhibits, petitioner wife produced credible           
          evidence to establish that she met the requisite time                       
          requirements.  Higbee v. Commissioner, 116 T.C. 438, 442 (2001).            
          Petitioner wife did not comply, however, with respondent’s                  
          reasonable request to view redacted law practice time sheets.               
          Accordingly, we find that section 7491 does not shift the burden            
          of proof to respondent.  Petitioners therefore bear the burden of           
          proving by a preponderance of the evidence that they qualified              
          for an exception to the definition of a rental activity.                    
          Extraordinary Personal Services                                             
               We address next whether petitioners qualify for the                    
          extraordinary personal services exception.  To qualify for the              
          extraordinary personal services exception, petitioners must prove           
          that the activity was not a “rental activity” under section                 
          469(j)(8).  In so doing, petitioners must prove that the use by             
          customers of AGI’s real property was incidental to their receipt            
          of AGI’s services.6  Sec. 1.469-1T(e)(3)(ii)(C), Temporary Income           
          Tax Regs., supra at 5702.                                                   
               Very little guidance exists on the meaning of                          
          “extraordinary” personal services, and no reported case by this             


               6The extraordinary personal services exception is separate             
          from another exception, not at issue here, where the rental of              
          property is “incidental to” a nonrental activity.  See sec.                 
          1.469-1T(e)(3)(ii)(D), Temporary Income Tax Regs., 53 Fed. Reg.             
          5702 (Feb. 25, 1998).  Unlike the extraordinary personal services           
          exception, this exception involves a computational analysis.  See           
          sec. 1.469-1T(e)(3)(vi); compare sec. 1.469-1T(e)(3)(v),                    
          Temporary Income Tax Regs., supra.                                          




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