Fred Misko, Jr. and Karen L. Howe-Misko - Page 13

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          depreciation taken on the equipment, and he derived no personal             
          pleasure or recreation from using the equipment.  We also find              
          petitioner’s testimony as to his intent to profit from the                  
          equipment leasing activity credible, thorough, and persuasive.              
               Further, respondent argues that petitioner could not profit            
          on the amount he charged in rent, yet presented no evidence                 
          regarding prevailing market rental rates for similar equipment.             
          Respondent also argues that petitioner should have sold the                 
          equipment for fair market value rather than book value, but has             
          presented no evidence regarding the fair market value of the                
          equipment, particularly for computer equipment that may lose                
          value rapidly.  Consequently, respondent has not met his burden             
          to show that petitioner did not engage in the equipment leasing             
          activity with the primary purpose to earn a profit.  Commissioner           
          v. Groetzinger, 480 U.S. at 35; Wolf v. Commissioner, 4 F.3d 709,           
          713 (9th Cir. 1993), affg. T.C. Memo. 1991-212; Warden v.                   
          Commissioner, T.C. Memo. 1995-176, affd. without published                  
          opinion 111 F.3d 139 (9th Cir. 1997).                                       
          II. Whether the Passive Loss Rules Preclude Petitioner From                 
               Deducting His Losses                                                   
               Respondent also argues that, if section 183 does not deny              
          petitioner the loss deduction, then the loss deduction should be            
          disallowed pursuant to the passive activity loss limitations.               
          See sec. 469.  Petitioner concedes that he has the burden of                







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