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that we place ownership of an activity or business conducted
through an unincorporated association. This is no easy task as
none of the many indicia of ownership are determinative.
Nevertheless, for the following reasons, we agree with
respondent.
Although we make no finding on the point, for convenience we
proceed as though during each year in issue Malone Music
constituted a trade or business within the meaning of section 162
and turn our attention to which individual or individuals were
“carrying on” that trade or business during those years. In so
doing we note that the services offered by Malone Music are best
described as labor-intensive and examine: (1) Ownership of the
assets used in the business; (2) what individuals provided the
necessary labor; and (3) how Malone Music was held out to, and/or
perceived by the general public.
Beginning with the last criterion, the Assumed Name Records
Certificate of Ownership for Unincorporated Business or
Profession, filed March 12, 1998, with the Clerk of Travis
County, Texas, describes Malone Music as a “proprietorship” owned
by petitioner. To that extent, petitioner publicly holds himself
out as the owner of the business, subject to whatever benefits
and burdens that might flow as a result. Nevertheless,
petitioner is nowhere named in any of the written promotional
materials published by Malone Music. Rather those materials
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