DocketNumber: Docket No. 20195-88
Citation Numbers: 59 T.C.M. 589, 1990 Tax Ct. Memo LEXIS 249, 1990 T.C. Memo. 241
Judges: TANNENWALD
Filed Date: 5/17/1990
Status: Non-Precedential
Modified Date: 11/21/2020
Decision will be entered for the petitioners.
*829 MEMORANDUM OPINION
Respondent determined a deficiency of $ 46,726 in petitioners' Federal income tax for the taxable year 1985.
The issue for decision is whether petitioner-husband, Theodore G. Arens, is entitled to avoid the short taxable year limitation of
This case was submitted to the Court fully stipulated under Rule 122. The stipulation of fact and attached exhibits are incorporated *250 by this reference.
Petitioners are husband and wife and maintained their legal residence in Milford, Michigan, at the time of filing the petition. They filed a joint Federal income tax return for the taxable year 1985 with the Internal Revenue Service Center in Cincinnati, Ohio.
On August 17, 1983, petitioner-husband became a 60-percent general partner of Fabri-Matic Investments, a general partnership (the partnership), composed of petitioner-husband and Louis J. Crowley. In 1984, he contributed approximately $ 40,000 to the capital of the partnership. The partnership acquired a parcel of property and completed construction of an industrial and office building on the property which it leased to Fabri-Matic, Inc., a corporation of which Mr. Crowley was a major stockholder and president. The lease was for an initial period of 5 years commencing March 1, 1984, *830 with an option to renew for two additional 5-year periods. Petitioners were not shareholders of, and had no other business relationship with, Fabri-Matic, Inc.
The partnership reported the following on its 1984 and 1985 returns in respect of the building:
Expenses Other | |||
Gross Rental Income | Than Depreciation | Depreciation | |
1984 | $ 47,344.00 | $ 43,438.48 | $ 34,106.16 |
1985 | 54,924.00 | 48,224.20 | 38,766.54 |
On *251 December 12, 1985, petitioner-husband invested $ 108,000 in AFG Leasing Program No. 993, a grantor trust formed as an investment vehicle for the purchase and lease of various research and experimentation equipment to various lessees.
On their 1985 return, petitioners claimed an ACRS deduction for a full year in the amount of $ 101,948 with respect to petitioner-husband's interest in the equipment. In his notice of deficiency, respondent disallowed eleven-twelfths of the claimed deduction pursuant to the short taxable year provisions of
tangible property of a character subject to the allowance for depreciation --
(A) used in a trade or business, or
(B) held for the production of income.
In the case of a taxable year that is less than 12 months, the amount of the deduction * * * shall be an amount which bears the same relationship to the amount of the deduction, determined without regard to this paragraph, as the number of months in the short taxable year bears to 12. In such case, the amount of the deduction for subsequent taxable years shall be appropriately adjusted in accordance with regulations prescribed by the Secretary. The determination of when a taxable year begins shall be in accordance with regulations prescribed by the Secretary. * * *
Neither the Code nor the legislative history define "short taxable year" for purposes of
(f) Short taxable years -- (1) General rule. For any recovery year in which there are less than 12 months (hereinafter in this section referred *253 to as a "short taxable year"), the recovery allowance shall be determined by multiplying the deduction which would have been allowable if the recovery year were not a short taxable year by a fraction the numerator of which equals the number of months and part-months in the short taxable year and the denominator of which is 12. * * *
* * *
(4) When a taxable year begins. For purposes of this section, a taxable year of a person placing property in service does not include any month prior to the month in which the person begins engaging in a trade or business or holding recovery or depreciable property for the production of income. * * * In addition, if a person engages in a small amount of trade or business activity for the purpose of obtaining a disproportionately large recovery allowance for assets for the taxable year in which they are placed in service, and if placing those assets in service represents a substantial increase in the person's level of business activity, then for purposes of the recovery allowance for such assets the person will not be treated as beginning a trade or business until the increased amount of business activity begins. For property held for the production *254 of income, the principle of the preceding sentence also applies.
Initially we note that petitioners do not question the validity of the proposed regulations but assert that they did not have a "short taxable year" as defined therein. Thus, the usual rule that proposed regulations "carry no more weight than a position advanced on brief by respondent,"
Respondent contends that, since petitioner-husband first invested in the equipment in December 1985, he had a "short taxable year" pursuant to
Cases too numerous to cite have held that the business of a partnership is the business of its partners. See, e.g.,
(b) Character of Items Constituting Distributive Share. -- The character of any item of income, gain, loss, deduction, or credit included in a partner's distributive share under paragraphs (1) through (7) of subsection (a) shall be determined as
There is nothing in the Code or legislative history of
Respondent attempts to bolster his argument by pointing to
Once [the partnership's] income is ascertained and reported, its existence may be disregarded since each partner must pay tax on a portion of the total income
Nor does
We conclude that petitioners through the partnership were holding depreciable property for the production *258 of income during the entire taxable year 1985 and thus that this requirement of the proposed regulations is satisfied.
Alternatively, respondent argues that petitioners had a short taxable year in 1985 because the investment in the equipment for one month was for the purpose of obtaining a disproportionately large recovery allowance and represented a substantial increase in the level of petitioner-husband's business activity under proposed regulation
Petitioners counter that the proposed regulations only apply if a taxpayer substantially increases the amount of deductions for property held for use in the same business. Petitioners also contend that they do not run afoul of the proposed regulations if the comparison is made between the bases in the real estate and the equipment. In addition, petitioners argue that the proposed regulations contain a test of intention, and that petitioner-husband *259 was not engaged in the partnership for the purpose of securing a disproportionately large recovery allowance .
*832 We note first that neither the Code nor the proposed regulations contain a standard for measuring the amount of depreciable property that will be considered held for purposes of obtaining a disproportionately large ACRS deduction or substantially increasing the level of activity. The proposed regulations, however, speak in terms of "purpose," an element which obviously has a subjective element of intention. The determination of "purpose" under the proposed regulations is analogous to the question of profit objective which has repeatedly been held to be a question of fact under all the circumstances, with objective facts concededly given more weight than subjective facts as to a taxpayer's intention. E.g.,
The deficiency notice based the disallowance of the ACRS deduction solely on the ground that "it has not been established that either you or the partnership or trust, were in a trade or business for any more than one month during 1985 * * *." Neither respondent's answer nor the stipulation of the parties referred to the alternative ground now being advanced to sustain the disallowance. Such being the case, this ground constitutes a new matter as to which respondent has the burden of proof. Rule 142(a). The fact that petitioners, as well as respondent, first addressed the matter in their original briefs does no more than permit respondent belatedly to make the argument on the new ground; it does not effect the location of the burden of proof.
In sum, we hold that petitioners herein are not subject to the short taxable year limitation of
1. All section references are to the Internal Revenue Code, as amended and in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. The total deduction claimed on the return is $ 102,898 and this is the figure attributed by respondent on brief to the ACRS deduction. However, the notice of deficiency only disallowed $ 93,452 of the ACRS deduction which is 11/12ths of $ 101,948.↩
3. The ACRS rules have been changed by the Tax Reform Act of 1986, Pub. L. 99-514, sec. 201(a), 100 Stat. 2085, 2121.
4. In light of these concessions, we fail to understand why respondent devoted so much time on brief to the question whether petitioners had carried their burden of proof as to the existence of a profit objective sufficient to support the conclusion that the partnership was engaged in a trade or business.↩
Russell Box Co. v. Commissioner of Internal Revenue , 208 F.2d 452 ( 1953 )
E.A. Brannen and Frances K. Brannen v. Commissioner of ... , 722 F.2d 695 ( 1984 )
William E. Campbell and Gwendolyn J. Campbell, Cross v. ... , 813 F.2d 694 ( 1987 )