Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 348

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            enter a trade or business with respect to the technology, the                               
            entity will be treated as a passive investor, not eligible for                              
            deductions under section 174.                                                               
                  As indicated previously, in Estate of Cook v. Commissioner,                           
            T.C. Memo. 1993-581, the Court addressed another IRC                                        
            shareholder’s entitlement to a deduction for IRC’s claimed 1979                             
            research and development expense.  In Estate of Cook, the Court                             
            rejected the taxpayers’ contention that a realistic prospect                                
            existed of IRC’s entering into a trade or business to exploit the                           
            results of the research and experimentation it acquired from                                
            Newport.                                                                                    
            B.  The Parties’ Arguments                                                                  
                  Because respondent raised this issue in an amendment to                               
            answer in which he asserted an increased deficiency, respondent                             
            has the burden of proof on this issue under Rule 142(a)(1).                                 
            Respondent asserts the identical research and development expense                           
            and business expense issues were presented to and decided by the                            
            Court in Estate of Cook, and respondent maintains the Court’s                               
            reasoning and conclusions in Estate of Cook are equally                                     
            applicable here.                                                                            
                  Petitioners contend the issues are purely factual and the                             
            present cases can be distinguished from the Estate of Cook case                             
            on the grounds that (1) Respondent, not petitioners, bears the                              
            burden of proof; and (2) Kanter was permitted to testify in these                           






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