Joseph J. Tallal, Jr. v. Commissioner of Internal Revenue

GEE, Circuit Judge. This is a tax deficiency case. Appellant Tallal argues that the tax court erred in finding that Cumberland, the partnership in which Tallal was a limited partner, was not engaged in coal mining with the primary objective and intent of making a profit and therefore erred in upholding the Commissioner’s assessment of a deficiency in Tallal’s 1976 tax return. We affirm. All expenses of every business transaction are not necessarily deductible under 26 U.S.C. § 162(a). Before any such deduction is allowed, it must be shown that the activity or enterprise was undertaken with the dominant hope and intent of realizing a profit. Louisiana Credit Union League v. United States, 693 F.2d 525, 532 (5th Cir.1982); Hirsch v. Commissioner, 315 F.2d 731, 736 (9th Cir.1963). When the taxpayer is a member of a partnership, we have interpreted 26 U.S.C. § 702(b) to require that business purpose must be assessed at the partnership level. Barham v. United States, 301 F.Supp. 43, 44-47 (M.D.Ga.1969), aff'd per curiam, 429 F.2d 40, 41 (5th Cir.1970). Accordingly, for the purpose of determining whether an expense is deductible under 26 U.S.C. § 162(a), the partnership’s motive controls, not an individual partner’s motive for joining the partnership. Brannen v. Commissioner, 722 F.2d 695, 703-704 (11th Cir. 1984); Goodwin v. Commissioner, 75 T.C. 424, 437 (1980), aff'd, 691 F.2d 490 (3d Cir.1982) (without published opinion); Madison Gas & Electric Co. v. Commissioner, 633 F.2d 512, 517 (7th Cir.1980). Using the criteria identified in Treasury Regulation § 1.183-2 for guidance, the tax court in today’s case found that Cumberland lacked a bona fide profit objective. Based on this, the tax court concluded that Tallal’s deduction under § 162(a) was not justified. The tax court’s finding of a lack of a bona fide profit objective is not clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 285-87, 102 S.Ct. 1781, 1788-89, 72 L.Ed.2d 66 (1982); Byram v. United States, 705 F.2d 1418, 1422-23 (5th Cir.1983). We AFFIRM.