                          T.C. Memo. 2001-296



                        UNITED STATES TAX COURT



              BRUCE AND JUDY BAILEY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3293-00.                    Filed November 7, 2001.




     Bruce and Judy Bailey, pro se.

     Christine V. Olsen, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION

     COHEN, Judge:     Respondent determined deficiencies of $12,094

and $11,651 in petitioners’ Federal income tax for 1996 and 1997,

respectively.    After concessions, the remaining issues for

decision are:    (1) Whether petitioner Judy Bailey (petitioner)

was a real estate professional under section 469(c)(7) during
                               - 2 -

1997 and (2) whether petitioners materially participated in the

operation of their Lake Arrowhead property during 1996 and 1997.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

     Petitioners resided in La Jolla, California, at the time

they filed their petition.   Petitioners filed joint individual

income tax returns for 1996 and 1997.

     Petitioners are both attorneys admitted to practice in

California.   Petitioner is an employee of Judy R. Bailey, a

professional corporation, and practices in San Diego, California.

     During 1996 and 1997, petitioners owned the following real

estate properties, all of which were located in California:

(1) A condominium located at Arapaho Way, Indian Wells (Indian

Wells condominium); (2) a unit in a planned unit development

located at Arapaho Drive, Indian Wells (Indian Wells unit);

(3) two four-plex buildings located at Elderwood Court, Riverside

(Elderwood properties); and (4) a single-family house located at

Caribou Drive, Lake Arrowhead (Lake Arrowhead property).

Petitioners filed an election, with their income tax return in
                                - 3 -

1994, to treat all interests in rental real estate as a single

rental real estate activity pursuant to section 469(c)(7)(A).

     Petitioner kept daily calendars for 1996 and 1997 that

contained various appointments related to her law practice and

real estate activities.    In preparation for trial, petitioner

prepared a separate summary report of her calendars for 1996 and

1997.   Each summary report provided an estimate of the total

number of hours spent on activities related to each rental

property and gave a general description of the activities

performed by petitioner.    The summary report also provided a

general list of the legal activities performed by petitioner and

estimated that she spent 876 hours in the practice of law in

1997.

Indian Wells Properties

     Petitioner estimated that in 1997 she spent approximately

311 hours on activities related to the Indian Wells properties.

Petitioner summarized her activities for 1997 as “re-rented,

cleaned, did gardening, showed property to prospective renters,

inspected repairmen’s work”.    She also “started [the] process to

sell by drawing up option[s] to purchase for prospective buyers

[and] holding open houses.”    Petitioner’s 1997 calendar indicates

that she made 13 visits to the Indian Wells properties, 7 of

which were in conjunction with matters relating to her law

practice.
                                - 4 -

     Petitioner had a commission agreement with Shirley Baughan

and Associates to handle the rental of the Indian Wells

condominium.   The Indian Wells condominium was rented to a tenant

from January 1 through 31, 1997, and to another tenant from

February through December 1997.       The residential lease agreement

directed the tenants to remit their rent to Shirley Baughan’s

address.   Shirley Baughan and Associates collected the rent

payments, paid itself the agreed commission, reimbursed itself

for expenses and repairs related to the rental property, and

issued a check for the remaining amount to petitioners.          Some of

the expenses paid by Shirley Baughan and Associates were for

shower parts, a water hose, a dryer vent hose, labor, the water

bill, and keys.   Petitioners deducted the commission expense that

they paid to Shirley Baughan and Associates in the amount of

$1,367 on Schedule E, Supplemental Income and Loss, of their 1997

joint income tax return.

     Petitioners reported the rents received and expenses from

the Indian Wells properties on Schedule E of their 1997 joint

income tax return as follows:

                       Indian Wells      Indian Wells
                        Condominium          Unit        Total

     Rents received        $13,805          $10,900     $24,705
     Less: Expenses         29,255           10,487      39,742
     Income/(Loss)         (15,450)             413     (15,037)
                                - 5 -

Elderwood Properties

     Petitioner estimated that in 1997 she spent approximately

412 hours on activities related to the Elderwood properties.

During 1997, the Elderwood properties were vacant, and petitioner

conducted open houses to sell the Elderwood properties.

Petitioner summarized her activities for 1997 as “arranged for

repairs, did gardening and cleaning and inspected properties on a

regular basis.”   Petitioner encountered several problems with the

Elderwood properties in 1997 such as roof leaks that damaged the

painting and carpeting, vandalism, trespassing by neighborhood

children, and the eviction of a homeless person.      Petitioner made

nine visits to the Elderwood properties, five of which were in

conjunction with matters relating to her law practice.

     Petitioners reported the rents received and expenses from

the Elderwood properties on Schedule E of their 1997 joint income

tax return as follows:

                            Elderwood     Elderwood
                            4-plex #1     4-plex #2    Total

       Rents received             $-0-       $-0-        $-0-
       Less: Expenses           11,227      7,837      19,064
       Income/(Loss)           (11,227)    (7,837)    (19,064)

Lake Arrowhead Property

     Petitioner estimated that she spent 197.5 hours and 214

hours in 1996 and 1997, respectively, on activities related to

the Lake Arrowhead property.    The average period of customer use

for the Lake Arrowhead property was 5 days per customer and 3.86
                               - 6 -

days per customer during 1996 and 1997, respectively.    In 1996,

petitioner supervised the repairmen and contractors, made

selections and supervised interior design work, purchased

household furnishings and supplies, and cleaned the property.

Petitioner summarized her activities for 1997 as “re-rented,

cleaned, gardening, showed property to prospective renters,

inspected repairmen’s work” and “started process to sell by

holding open houses”.   In 1996, petitioner made 10 visits to the

Lake Arrowhead property, 9 of which were in conjunction with

matters relating to her law practice.   In 1997, petitioner made

three visits to the Lake Arrowhead property, two of which were in

conjunction with matters relating to her law practice.

     Petitioner had a commission agreement with Mountain Country

Realty, Inc. (Mountain Country), to handle the rental of the Lake

Arrowhead property during 1996 and 1997.   Mountain Country

located renters and showed the property to prospective renters.

Mountain Country collected the rent payments, paid itself the

agreed commission, reimbursed itself for expenses and repairs

related to the rental property, and issued a check for the

remaining amount to petitioners.   Mountain Country handled the

repairs related to the Lake Arrowhead property.   Petitioners

deducted the commission expenses paid to Mountain Country in the

amounts of $2,471 and $1,881 in 1996 and 1997, respectively, on

Schedule E of their joint income tax return.
                               - 7 -

     Petitioners reported the rents received and expenses from

the Lake Arrowhead property on Schedule E of their 1996 and 1997

joint income tax return as follows:

                               1996        1997

       Rents received         $9,855      $9,935
       Less: Expenses         18,861      16,361
       Income/(Loss)          (9,006)     (6,426)

Notice of Deficiency

     The notice of deficiency dated December 14, 1999, informed

petitioners that the deficiency amounts determined by the

Commissioner were based on the following adjustments to income:

(1) “Rental Loss” of $38,722 and $40,527 disallowed in 1996 and

1997, respectively; (2) “Exemptions” reduced by $1,122 and $1,696

for 1996 and 1997, respectively; and (3) “Itemized Deductions”

reduced by $1,936 and $2,027 for 1996 and 1997, respectively.

                              OPINION

     The parties have stipulated that petitioner was a real

estate professional pursuant to section 469(c)(7) in 1996 and

that petitioners are entitled to deduct $29,716 in rental losses

in 1996 with respect to the Indian Wells properties and Elderwood

properties.

     Whether the remaining rental losses claimed by petitioners

in 1996 and 1997 constitute passive activity losses under section

469 depends on:   (1) Whether petitioner was a real estate

professional under section 469(c)(7) during 1997 and (2) whether
                                - 8 -

petitioners materially participated in the operation of their

Lake Arrowhead property during 1996 and 1997.

     Section 469 generally disallows for the taxable year any

passive activity loss.    Sec. 469(a).   A passive activity loss is

defined as the excess of the aggregate losses from all passive

activities for the taxable year over the aggregate income from

all passive activities for that year.    Sec. 469(d)(1).    A passive

activity is any trade or business in which the taxpayer does not

materially participate.    Sec. 469(c)(1).   Rental activity is

treated as a per se passive activity regardless of whether the

taxpayer materially participates.    Sec. 469(c)(2), (4).   Under

section 469(c)(7)(B), the rental activities of a taxpayer in the

real property business (real estate professional) are not per se

passive activities under section 469(c)(2), but are treated as a

trade or business and subject to the material participation

requirement of section 469(c)(1).    See also sec. 1.469-9(e)(1),

Income Tax Regs.

Real Estate Professional

     Petitioners assert that they are entitled to deduct their

rental losses in 1997 and that such losses are not subject to the

passive activity loss limitations under section 469.     Petitioners

contend that petitioner qualifies as a real estate professional

under section 469(c)(7) for 1997, and, thus, their rental
                               - 9 -

activities are exempt from being passive activities under section

469(c)(2).

     Respondent’s position is that petitioners are not entitled

to deduct their rental losses in 1997 because their rental

activities are passive activities under section 469(c)(2).

Respondent maintains that petitioners have not presented adequate

evidence to support their assertion that petitioner was a real

estate professional pursuant to section 469(c)(7) in 1997.

     Under section 469(c)(7)(B), a taxpayer qualifies as a real

estate professional and a rental real estate activity of the

taxpayer is not a passive activity under section 469(c)(2) if:

     (i) more than one-half of the personal services
     performed in trades or businesses by the taxpayer
     during such taxable year are performed in real property
     trades or businesses in which the taxpayer materially
     participates, and

     (ii) such taxpayer performs more than 750 hours of
     services during the taxable year in real property
     trades or businesses in which the taxpayer materially
     participates.

     In the case of a joint return, the above requirements are

satisfied if and only if either spouse separately satisfied these

requirements.   Sec. 469(c)(7)(B).   Thus, if either spouse

qualifies as a real estate professional, the rental activities of

the real estate professional are exempt from being a passive

activity under section 469(c)(2).    Instead, the real estate

professional’s rental activities would be treated as a passive

activity under section 469(c)(1) unless the taxpayer materially
                                - 10 -

participated in the activity.    Sec. 1.469-9(e)(1), Income Tax

Regs.

     For purposes of determining whether a taxpayer is a real

estate professional, a taxpayer’s material participation is

determined separately with respect to each rental property,

unless the taxpayer makes an election to treat all interests in

rental real estate as a single rental real estate activity.     Sec.

469(c)(7)(A); sec. 1.469-9(e)(1), Income Tax Regs.    Here,

petitioners made an election in 1994 to treat their rental

properties as a single activity.    According to section 1.469-

9(g)(1), Income Tax Regs., this election is binding for the

taxable year in which it is made and, unless duly revoked by the

taxpayer, for all future years in which the taxpayer is a real

estate professional, even if there are intervening years in which

the taxpayer is not a real estate professional.

     Whether petitioner qualifies as a real estate professional

under section 469(c)(7) is based on petitioner’s activities

related to the Indian Wells condominium, Indian Wells unit, and

Elderwood properties.   Petitioners argue that the Lake Arrowhead

property is rental real estate that should be included in

determining whether petitioner is a real estate professional.     We

disagree.

     Petitioner’s activities that are related to the Lake

Arrowhead property are disregarded for purposes of determining
                              - 11 -

whether she was a real estate professional, because the Lake

Arrowhead property is not “rental real estate” as defined in

section 1.469-9(b)(3), Income Tax Regs.   Section 1.469-9(b)(3),

Income Tax Regs., defines “rental real estate” as “any real

property used by customers or held for use by customers in a

rental activity within the meaning of section 1.469-1T(e)(3).”

Section 1.469-1T(e)(3), Temporary Income Tax Regs., 53 Fed. Reg.

5702 (Feb. 25, 1988), states that, except as otherwise provided,

an activity is a “rental activity” for a taxable year, if “during

such taxable year, tangible property held in connection with the

activity is used by customers or held for use by customers”.    See

also sec. 469(j)(8).   As provided in section 1.469-

1T(e)(3)(ii)(A), Temporary Income Tax Regs., supra, an “activity

involving the use of tangible property is not a rental activity

for a taxable year if for such taxable year * * * [the] average

period of customer use for such property is seven days or less”.

     The average period of customer use for the Lake Arrowhead

property was less than 7 days during 1996 and 1997.    Thus, the

rental of the Lake Arrowhead property is not a “rental activity”

as defined in section 1.469-1T(e)(3)(ii)(A), Temporary Income Tax

Regs., supra, not “rental real estate” under section 1.469-

9(b)(3), Income Tax Regs., and not included in the election under

section 469(c)(7) to treat all interests in rental real estate as

a single rental real estate activity.   See Scheiner v.
                             - 12 -

Commissioner, T.C. Memo. 1996-554 (where average period of

customer use less than 7 days, condominium hotel activity was not

rental activity under section 469(j)(8) and not considered a

passive activity under section 469(c)(2)); Mordkin v.

Commissioner, T.C. Memo. 1996-187.

     Respondent maintains that petitioner is not a real estate

professional for 1997 because:   (1) Petitioners have not

substantiated through a reasonable means that petitioner

performed more than 750 hours of service in relation to her

rental activities and (2) petitioner’s personal services

performed in her rental activities during 1997 do not exceed the

876 hours that she spent in her practice of law.

     With respect to the evidence that may be used to establish

hours of participation, section 1.469-5T(f)(4), Temporary Income

Tax Regs., 53 Fed. Reg. 5727 (Feb. 25, 1988), provides:

     The extent of an individual’s participation in an
     activity may be established by any reasonable means.
     Contemporaneous daily time reports, logs, or similar
     documents are not required if the extent of such
     participation may be established by other reasonable
     means. Reasonable means for purposes of this paragraph
     may include but are not limited to the identification
     of services performed over a period of time and the
     approximate number of hours spent performing such
     services during such period, based on appointment
     books, calendars, or narrative summaries.

     Petitioner kept a daily calendar for 1997 that indicated the

number of visits made to the rental properties, but the calendar

did not quantify the number of hours that she spent on her rental
                              - 13 -

activities.   Petitioner attempted to summarize the activities

that were noted in her 1997 calendar into a summary report, in

which she generally explained the activities performed at the

rental properties and provided an annual estimate of the hours

spent on each rental property.   Excluding petitioner’s estimate

of the hours that she spent on activities directly related to the

Lake Arrowhead property, petitioner’s summary report estimated

that she spent 827 hours performing services related to the

rental properties during 1997 and consisted of the following:

(1) Indian Wells properties, 311 hours; (2) Elderwood properties,

412 hours; and (3) general activities for all real estate

properties (including the Lake Arrowhead property), 104 hours.

We believe that the methods that petitioner used to approximate

the time that she spent performing these services during 1997 are

not reasonable within the meaning of section 1.469-5T(f)(4),

Temporary Income Tax Regs., supra.     Petitioner’s estimates are

uncorroborated and do not reliably reflect the hours that she

devoted to her rental real estate activities.    Petitioner

assigned hours to activities years later, and in preparation for

trial, based solely on her judgment and experience as to how much

time the activities must have taken her.    This Court has

previously noted that, while the regulations are somewhat

ambivalent concerning the records to be maintained by taxpayers,

they do not allow a postevent “ballpark guesstimate”.     Carlstedt
                             - 14 -

v. Commissioner, T.C. Memo. 1997-331; Speer v. Commissioner, T.C.

Memo. 1996-323; Goshorn v. Commissioner, T.C. Memo. 1993-578.

Petitioner has not distinguished the facts of this case from

those cited, and we conclude that they are not distinguishable.

     The following factors further diminish the credibility and

accuracy of the summary report prepared by petitioner:   (1) The

number of hours claimed appears excessive in relation to the

tasks described; (2) petitioner testified that she usually

combined a trip to the rental properties with a trip related to

her law practice; (3) the Elderwood properties were vacant during

1997; (4) the Elderwood properties and Indian Wells properties

were for sale during 1997; and (5) petitioner had a commission

agreement with Shirley Baughan and Associates to manage the

rental of the Indian Wells condominium during 1997.

     Additionally, petitioner’s personal services performed in

her rental activities of 827 hours do not exceed the 876 hours

that she spent in 1997 in her practice of law.   Petitioner

therefore does not qualify as a real estate professional under

section 469(c)(7), and the rental activities of the Indian Wells

properties and Elderwood properties are passive activities under

section 469(c)(2) during 1997 regardless of material

participation by petitioner in these activities.   See sec.

469(c)(4).
                              - 15 -

Lake Arrowhead Property

     Respondent maintains that petitioners are not entitled to

deduct losses generated from their Lake Arrowhead property in

1996 and 1997, because the Lake Arrowhead property is real estate

held in a trade or business subject to section 469(c)(1), rather

than a rental activity under section 469(c)(2), and petitioners

have not established that they materially participated in the

trade or business of renting their Lake Arrowhead property as

required by section 469(c)(1)(B).

     Petitioners argue that they properly filed an election

pursuant to section 469(c)(7)(A)(ii) to treat all of their

interests in rental real estate as a single rental real estate

activity and that their activities related to the rental of their

Lake Arrowhead property should be considered in aggregate with

their other rental properties.   As previously explained,

petitioners’ argument fails because the election to treat all

rental properties as one activity is limited to the purpose of

determining whether a taxpayer is a real estate professional

under section 469(c)(7).   Here, the average period of use of the

Lake Arrowhead property was less than 7 days in 1996 and 1997;

thus, the rental of the Lake Arrowhead property is not a rental

activity as defined in section 469(j)(8) and is not a passive

activity under section 469(c)(2).   See Scheiner v. Commissioner,

supra; Mordkin v. Commissioner, supra.   Nevertheless,
                                 - 16 -

petitioners’ operations at the Lake Arrowhead property during

each year in issue constitute an activity that is treated as a

trade or business under section 469(c)(6).     Consequently,

petitioners’ operations at the Lake Arrowhead property will

constitute a passive activity under section 469(c)(1) unless

petitioners establish that they materially participated in that

activity during the taxable years in issue.     Petitioners argue in

the alternative that the activities related to the Lake Arrowhead

property were not a passive activity under section 469(c)(1)

because petitioners met the material participation requirements.

     Material participation is defined as involvement in the

operations of the activity that is regular, continuous, and

substantial.   Sec. 469(h)(1).    As explained in section 1.469-

5T(a), Temporary Income Tax Regs., 53 Fed. Reg. 5696 (Feb. 25,

1988), a taxpayer can satisfy the material participation

requirement if the individual meets any one of the seven

regulatory tests:

     (1) The individual participates in the activity for
     more than 500 hours during such year;

     (2) The individual’s participation in the activity for
     the taxable year constitutes substantially all of the
     participation in such activity of all individuals
     (including individuals who are not owners of interests
     in the activity) for such year;

     (3) The individual participates in the activity for
     more than 100 hours during the taxable year, and such
     individual’s participation in the activity for the
     taxable year is not less than the participation in the
     activity of any other individual (including individuals
                               - 17 -

       who are not owners of interests in the activity) for
       such year;

       (4) The activity is a significant participation
       activity * * * for the taxable year, and the
       individual’s aggregate participation in all significant
       participation activities during the year exceeds 500
       hours;

       (5) The individual materially participated in the
       activity * * * for any five taxable years (whether or
       not consecutive) during the ten taxable years that
       immediately precede the taxable year;

       (6) The activity is a personal service activity * * *,
       and the individual materially participated in the
       activity for any three tax years (whether or not
       consecutive) preceding the taxable year; or

       (7) Based on all facts and circumstances * * *, the
       individual participates in the activity on a regular,
       continuous, and substantial basis during such year.

       “Participation” generally means “all work done in an

activity by an individual who owns an interest in the activity”.

Sec. 1.469-5T(f), Temporary Income Tax Regs., 53 Fed. Reg. 5697

(Feb. 25, 1988).    Work done by an individual in the individual’s

capacity as an investor in an activity is not generally treated

as participation in the activity.    Sec. 1.469-5T(f)(2)(ii)(A),

Temporary Income Tax Regs., supra.      Additionally, work done by

the individual is not treated as participation in the activity if

such work is not of a type that is customarily done by an owner

of such activity and one of the principal purposes for performing

such work is to avoid the passive activity limitations of section

469.    Sec. 1.469-5T(f)(2)(i), Temporary Income Tax Regs., supra.
                               - 18 -

     In determining whether a taxpayer materially participates,

the participation of the spouse of the taxpayer shall be taken

into account.   Sec. 469(h)(5).   Petitioners’ reply brief argues

that they both spent time in the activity in issue; however,

Bruce Bailey did not testify or even appear at trial.

Petitioners’ assertion that Bruce Bailey spent time in the

activity appears to be an afterthought; such participation is not

mentioned in the testimony of petitioner, who described only her

own actions.    Thus, we are unable to take into account the hours,

if any, spent by Bruce Bailey in the operation of the Lake

Arrowhead property.

     Petitioners contend that they meet several of the material

participation tests under section 1.469-5T(a), Temporary Income

Tax Regs., 53 Fed. Reg. 5696 (Feb. 25, 1988).   Petitioner’s

summary report estimated that she spent 197.5 hours and 214 hours

in 1996 and 1997, respectively, on activities related to the Lake

Arrowhead property.   Petitioner’s calendars indicated the number

of visits made to the Lake Arrowhead property in 1996 and 1997,

but those calendars do not quantify the number of hours that

petitioner spent on activities related to the Lake Arrowhead

property.   For the reasons stated previously, we do not accept

petitioner’s summary reports that estimated the hours spent on

activities related to the Lake Arrowhead property.   See Carlstedt
                              - 19 -

v. Commissioner, T.C. Memo. 1997-331; Speer v. Commissioner, T.C.

Memo. 1996-323; Goshorn v. Commissioner, T.C. Memo. 1993-578.

     Even if such hours were accurate, petitioners would not meet

any of the material participation tests.   Petitioners have not

spent more than 500 hours in the activity.   Petitioner’s

commission agreement with Mountain Country to manage the rental

of the Lake Arrowhead property would preclude petitioners’

activities from being substantially all of the participation in

the activity.   Petitioners have not presented evidence to

establish that the participation by Mountain Country did not

exceed petitioners’ participation. Petitioners have not presented

evidence of their material participation in the Lake Arrowhead

property for 5 of the prior 10 years.

     Petitioners also fail the facts and circumstances test based

on petitioner’s commission agreement with Mountain Country to

operate the rental of their Lake Arrowhead property.   The realty

company found tenants, showed the property, collected rents, and

paid for repairs.   See Barniskis v. Commissioner, T.C. Memo.

1999-258 (taxpayers did not materially participate where

taxpayers utilized a management company to handle the rental of

their resort condominium); Chapin v. Commissioner, T.C. Memo.

1996-56 (taxpayers’ participation did not constitute

participation on a regular, continuous, and substantial basis

where taxpayers used a rental agent to handle all leasing
                                - 20 -

arrangements, cleaning between tenants, and routine repairs and

maintenance).

     We conclude that petitioners did not materially participate

in the operation of the Lake Arrowhead property during 1996 and

1997, and, accordingly, petitioners’ trade or business relating

to the Lake Arrowhead property is a passive activity under

section 469(c)(1).   The losses incurred with respect to the Lake

Arrowhead property are subject to the passive loss limitations

imposed by section 469 and are disallowed in 1996 and 1997.

Notice of Deficiency

     Petitioners argue in their reply brief that the notice of

deficiency failed to set forth the reasons for respondent’s

determinations with sufficient specificity to satisfy the

requirements of section 7522.    Section 7522(a) requires that a

notice of deficiency “describe the basis” for the tax deficiency.

However, an “inadequate description under the preceding sentence

shall not invalidate such notice.”       Sec. 7522(a).

     Here, the notice of deficiency listed “Rental loss” as an

adjustment and disallowed the entire amount of the rental losses

claimed by petitioners in 1996 and 1997.       The notice of

deficiency sufficiently apprised petitioners of the basis for

respondent’s deficiency determination.       At trial and in

respondent’s briefs, respondent provided a consistent explanation

for the disallowance of the rental losses.       Respondent has taken
                             - 21 -

no position that would require petitioners to present evidence

different from that necessary to resolve the determinations that

were described in the notice of deficiency, so as to justify

placing the burden of proof on respondent.   See Shea v.

Commissioner, 112 T.C. 183 (1999).

     We have considered all of the remaining arguments that have

been made by petitioners for a result contrary to that expressed

herein, and, to the extent not discussed above, they are without

merit.

     To reflect the foregoing and concessions of the parties,

                                          Decision will be entered

                                     under Rule 155.
