Wayne B. Bailey - Page 9




                                        - 8 -                                         
          active trade or business are start-up expenditures.  Sec. 195(c).           
          Section 195(a) generally precludes taxpayers from deducting                 
          start-up expenditures.  However, for the years at issue, section            
          195(b) generally allowed taxpayers to elect to amortize start-up            
          expenditures over a period not less than 60 months, beginning (at           
          the earliest) in the year in which the active trade or business             
          commences.5  If the start-up expenditures relate to an endeavor             
          that never rises to the status of an active trade or business, a            
          taxpayer may not amortize the start-up expenditures.  See Bernard           
          v. Commissioner, T.C. Memo. 1998-20.                                        
               In the matter before us, respondent’s notice of deficiency             
          makes no mention of section 195, the language of section 195, or            
          the principles upon which section 195 rests.  The record does not           
          establish that respondent raised section 195 during the                     
          examination of petitioner’s income tax returns or otherwise                 
          notified petitioner that section 195 was relevant to his                    
          determination.  Respondent’s section 195 argument is therefore              
          new matter, and respondent bears the burden of proof with respect           
          to section 195.  Rule 142(a).                                               




               5  In 2004, Congress amended sec. 195(b) to allow electing             
          taxpayers to deduct start-up expenditures over a period of 180              
          months beginning with the month in which the active trade or                
          business begins.  American Jobs Creation Act of 2004, Pub. L.               
          108-357, sec. 902(a)(1), 118 Stat. 1651.  Sec. 195 applies as so            
          amended to amounts paid or incurred after Oct. 22, 2004.                    





Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Next 

Last modified: November 10, 2007