Fred Misko, Jr. and Karen L. Howe-Misko - Page 14

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          proof on this issue.  See Rule 142(a); Welch v. Helvering, 290              
          U.S. 111 (1933).                                                            
               Losses from a passive activity are generally not allowed as            
          a deduction for the year in which they are sustained, except to             
          the extent of passive activity income.  Sec. 469(a).  A passive             
          activity loss is the excess of the aggregate losses from all                
          passive activities for the taxable year over the aggregate income           
          from all passive activities for the year.  See sec. 469(d)(1).              
               Passive activities are those activities involving the                  
          conduct of a trade or business in which the taxpayer does not               
          materially participate.  Sec. 469(c)(1).  Rental activities are             
          presumptively passive, without regard to whether the taxpayer               
          materially participates in the activity.  See sec. 469(c)(2),               
          (4).  Both parties agree that petitioner’s equipment leasing                
          activity is a rental activity and that the income from the                  
          activity is therefore passive, unless petitioner qualifies under            
          one of six exceptions listed in the regulations.  See Welch v.              
          Commissioner, T.C. Memo. 1998-310; sec. 1.469-1T(e)(3)(ii)(A)               
          through (F), Temporary Income Tax Regs., 53 Fed. Reg. 5702 (Feb.            
          25, 1988).9  The exception relevant here is the incidental                  

               9The Commissioner is given authority under sec. 469(l) to              
          prescribe regulations to carry out the provisions of the section.           
          As relevant here, this statutory authority was carried out in               
          sec. 1.469-1T, Temporary Income Tax Regs., 53 Fed. Reg. 5701                
          (Feb. 25, 1988), sec. 1.469-5T, Temporary Income Tax Regs., 53              
          Fed. Reg. 5725 (Feb. 25, 1988), and sec. 1.469-9, Income Tax                
                                                             (continued...)           





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