Austin L. Mitchell and Rebecca A. Mitchell - Page 12

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          planting, mature timber harvesting, and haying undertakings may             
          be treated as one activity.  We therefore reject respondent’s               
          determination in the deficiency notice.  By treating the                    
          undertakings as one activity, we note that petitioner reported              
          $7,500 from the sale of timber, $4,155 from the sale of hay, and            
          claimed farm expenses of $6,295 in 1999.  Accordingly, petitioner           
          had a net profit from the farming activity in 1999, and we                  
          therefore do not sustain respondent’s disallowance of the claimed           
          farm expenses as to 1999.  Furthermore, we shall consider all               
          petitioner’s farming undertakings as one activity in analyzing              
          whether petitioner conducted the farming activity with an actual            
          and honest objective of making a profit during 1998 and 2000.               
               2.   Whether the Section 183(d) Presumption Applies                    
               We next address whether petitioner is entitled to the                  
          section 183(d) presumption of a profit motive.  Petitioner                  
          contends that he qualifies for the profit motive presumption                
          under section 183(d) for 1998 and 2000 by arguing that the gross            
          income derived from the farming activity exceeded the deductions            
          attributable to the activity in 1999, 2001, 2003, and 2004.  We             
          disagree.  Section 183(d) presumes an activity is conducted for             
          profit if the gross income exceeds the attributable deductions              
          for 33 out of 5 consecutive years (the gross income test).4  The            

               3We note that sec. 1.183-1(c)(1), Income Tax Regs., has not            
          been amended to conform to the statutory changes made in 1986.              
                                                             (continued...)           





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