Walter Michael Alley - Page 7

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                                     Discussion6                                      
               As previously stated, on his Schedule C for taxable years              
          2000 and 2001 petitioner deducted business expenses of $16,059              
          and $16,107, respectively.  The parties agreed, at trial, that              
          petitioner substantiated truck expenses of $12,757 and $12,657              
          for the taxable years 2000 and 2001, respectively.                          
               As we understand it, petitioner’s principal contention is              
          that he was individually and independently in the business of               
          leasing his truck to his employer, and that the agreed-upon                 
          expenses incurred for maintenance and repairs of his truck were             
          deductible as ordinary and necessary expenses of conducting that            
          business and thus were above-the-line Schedule C deductions.                
               On the other hand, respondent contends that the agreed-upon            
          expenses are deductible as unreimbursed employee business                   
          expenses and thus are itemized deductions subject to the 2-                 
          percent floor of section 67.                                                
               It is well established that a taxpayer is engaged in a trade           
          or business if the taxpayer is involved in the activity (1) with            
          continuity and regularity, and (2) with the primary purpose of              
          making a profit.  Commissioner v. Groetzinger, 480 U.S. 23, 35              
          (1987); Antonides v. Commissioner, 893 F.2d 656, 659 (4th Cir.              


          6We decide the issue in this case without regard to the                     
          burden of proof.  Accordingly, we need not decide whether the               
          general rule of sec. 7491(a)(1) is applicable in this case.  See            
          Higbee v. Commissioner, 116 T.C. 438 (2001).                                





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