Linda M. Myers - Page 9




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          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.                              





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