-407- 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 thesePage: Previous 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 Next
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