Brotherman v. United States

6 Cl. Ct. 407, 54 A.F.T.R.2d (RIA) 6179, 1984 U.S. Claims LEXIS 1286
United States Court of Claims·Decided October 10, 1984·No. No. 446-82T·Published·Cited by 2 cases

Opinion

OPINION

MARGOLIS, Judge.

This case is before the Court on cross motions for partial summary judgment. The plaintiffs Donald P. Brotherman and Hilda Brotherman claim to have overpaid their taxes for the years 1976, 1977, and 1978. The Internal Revenue Service (IRS) disallowed their deduction of plaintiff Donald P. Brotherman’s distributive share in the losses of two partnerships, and it assessed a deficiency, which the plaintiffs paid. They now seek a refund of $12,-585.57 plus interest.

The plaintiffs’ motion concerns one of those partnerships, Cable T.V. of Meyers South Tahoe, Ltd. (the partnership).

FACTS

The parties have agreed on the following facts:

Cable T.V. of Meyers South Tahoe, Ltd. is a limited partnership formed on or before December 1, 1976 to acquire, own, and operate a community antenna television system (CATV), including “AML” transmitting and receiving equipment, located in and around Meyers, California. Plaintiff Donald P. Brotherman became a partner immediately and remained a partner during the years 1976,1977, and 1978. On December 1, 1976, the partnership bought a recently constructed, unlicensed CATV from MTI Microwave Systems, Ltd. MTI had applied for a license, but on January 13, 1977 the Federal Communications Commission (FCC) advised it that its application was incomplete. MTI answered that it had sold the system and that the FCC would receive the requested information from Cable T.V.’s general partner, Communication Systems, Inc. On February 7, 1977, counsel informed the general partner that it should file a new application with the FCC. The general partner did so, and the FCC granted the license on March 30, 1979. The partnership received its first subscription revenue and installation fees on or about August 25, 1978.

From 1976 to 1978 the partnership reported net operating losses, claiming that it ,had incurred ordinary and necessary business expenses. Plaintiff Donald P. Broth-erman deducted his distributive share of these losses. The IRS disallowed the deductions on the ground that the partnership was not carrying on a trade or business within the meaning of § 162(a) of Title 26 U.S.C., the Internal Revenue Code of 1954, as amended (IRC).

The plaintiffs have moved for partial summary judgment to determine as a matter of law that revenue collection and an FCC license are not prerequisites to a CATV partnership’s carrying on a trade or business if the partnership has acquired a CATV system.

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Brotherman v. United States, 6 Cl. Ct. 407, 54 A.F.T.R.2d (RIA) 6179, 1984 U.S. Claims LEXIS 1286 (cc 1984).

6 Cl. Ct. 407 (Brotherman v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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