- 5 - circumstances, shift to the Commissioner under section 7491(a) if the taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the taxpayer’s income tax liability. See Higbee v. Commissioner, 116 T.C. 438, 441 (2001). However, the burden of proof remains on petitioners in this case as they have neither alleged that section 7491(a) is applicable nor introduced sufficiently credible evidence with respect to the factual issues relevant to ascertaining their income tax liability. See id. B. Losses From Rental Activities Section 469 generally disallows for the taxable year any passive activity loss. Sec. 469(a). A passive activity loss is defined as the excess of the aggregate losses from all passive activities for the taxable year over the aggregate income from all passive activities for that year. Sec. 469(d)(1). A passive activity is any trade or business in which the taxpayer does not materially participate. Sec. 469(c)(1). Rental activity, such as petitioners’ renting out the Lyon Street property, is generally treated as a per se passive activity regardless of whether the taxpayer materially participates. Sec. 469(c)(2) and (4). Under section 469(c)(7)(B), however, the rental activity of a taxpayer in a real property trade or business (real estate professional) is not per se a passive activity. Instead, it is treated as a trade or business and subject to the materialPage: Previous 1 2 3 4 5 6 7 8 9 10 11 NextLast modified: November 10, 2007