-8- taxpayer is carrying on a trade or business depends on the facts and circumstances.4 Id. at 36. Respondent has conceded that petitioner’s gambling activity was conducted with the required continuity and regularity during 2003. The parties dispute, however, whether petitioner’s primary purpose for engaging in the activity was to earn a profit. See id.; Miller v. Commissioner, T.C. Memo. 1998-463, affd. without published opinion 208 F.3d 214 (6th Cir. 2000). We examine whether the taxpayer engaged in the activity with the actual and honest objective of making a profit. See Evans v. Commissioner, 908 F.2d 369, 373 (8th Cir. 1990), revg. T.C. Memo. 1988-468; Keanini v. Commissioner, 94 T.C. 41, 46 (1990); Dreicer v. Commissioner, 78 T.C. 642, 645 (1982), affd. without opinion 702 F.2d 1205 (D.C. Cir. 1983); sec. 1.183-2(a), Income Tax Regs. While a taxpayer’s expectation of profit need not be reasonable, there must be a good faith objective of making a profit. Allen v. Commissioner, 72 T.C. 28, 33 (1979); sec. 1.183-2(a), Income Tax Regs. We give greater weight to objective facts than to a taxpayer’s statements of intent. Dreicer v. Commissioner, supra at 645; sec. 1.183-2(a), Income Tax Regs. 4At trial, we denied petitioner’s motion to shift the burden of proof under sec. 7491 because the outcome of this case is determined on the preponderance of the evidence, making it unnecessary to determine who has the burden of proof. See Topping v. Commissioner, T.C. Memo. 2007-92. The Court invited the parties to address this issue on brief. We have carefully reviewed the parties’ arguments on brief and stand by our ruling denying petitioner’s motion to shift the burden of proof to respondent. Instead, we shall determine the outcome of this case on the preponderance of the evidence. See id.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: March 27, 2008