Fred Misko, Jr. and Karen L. Howe-Misko - Page 16

                                       - 16 -                                         
          See also Schwalbach v. Commissioner, 111 T.C. 215, 225-226                  
          (1998).                                                                     
               2.   Whether Petitioner Meets the Incidental Activity                  
                    Exception Conditions                                              
               To qualify for the incidental activity exception by having a           
          rental of property treated as incidental to a trade or business             
          activity, a taxpayer must meet three conditions.  See sec. 1.469-           
          1(T)(e)(3)(vi)(C)(1)-(3), Temporary Income Tax Regs., 53 Fed.               
          Reg. 5703 (Feb. 25, 1988).  First, the taxpayer must own an                 
          interest in the trade or business.  Second, the property at issue           
          must predominantly be used in the trade or business during the              
          taxable year or during at least 2 of the 5 immediately preceding            
          taxable years.  Third, the gross rental income from the property            
          for the taxable year must be less than 2 percent of the lesser of           
          (i) the unadjusted basis of the property and (ii) the fair market           
          value of such property.  Petitioner meets these requirements.               
               Petitioner owns an interest in the law firm as its exclusive           
          owner.  On the basis of the evidence, the equipment leased to the           
          law firm was integral to the operation of the law firm.  The                
          equipment was crucial in petitioner presenting his cases, and               
          petitioner’s particular skill with the equipment increased his              
          renown in the class-action field.  Finally, the parties do not              
          dispute that petitioner’s gross rental income from the equipment            
          leasing activity met the percentage requirement, because                    
          petitioner received no rental income during the years at issue.             





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