                        T.C. Memo. 1996-206



                      UNITED STATES TAX COURT



         STEPHEN H. GLASSLEY AND JUDITH GLASSLEY, ET AL.,1
    Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket Nos. 13431-89, 19140-89          Filed April 30, 1996.
                  24177-89.



      John E. Williams and Eric W. Bloom, for petitioners.

      Rodney J. Bartlett and Brian M. Harrington, for respondent.




1
     The following cases were consolidated herewith for purposes
of trial, briefing, and opinion: Paul S. Mahoney, docket No.
19140-89; and Edward F. Houser, Jr. and Kathryn G. Houser, docket
No. 24177-89. There are presently at least four other cases
docketed in this Court which by stipulation are bound by the
outcome of these consolidated cases.
                               - 2 -

                             CONTENTS

                                                              Page

MEMORANDUM FINDINGS OF FACT AND OPINION........................2
OPINION OF THE SPECIAL TRIAL JUDGE.............................3
FINDINGS OF FACT...............................................4
  A. Background...............................................4
      1. The Jojoba Industry in General.......................4
      2. Carole A. Whittaker..................................5
      3. Joseph E. Berberich..................................7
      4. Jojoba Development Partners, Ltd.....................9
          a. The Private Offering Memorandum..................9
          b. The Research and Development Agreement..........15
          c. The Option and Joint Venture Agreement..........20
          d. The Farm Lease..................................23
          e. The Option and Farm Lease Agreement.............24
      5. Petitioners.........................................25
          a. Petitioners Stephen H. Glassley and Judith S.
              Glassley........................................25
          b. Petitioner Paul S. Mahoney......................28
          c. Petitioners Edward F. Houser, Jr. and Kathryn G.
              Houser..........................................29
  B. The Jojoba Plantation...................................32
  C. The Consequences of Petitioners' Initial Investment.....41
  D. The Experts.............................................43
      1. Paul H. Gross.......................................43
      2. Dr. Eberhardt.......................................47
      3. Marvin T. Parr......................................48
OPINION.......................................................51
  A. The Criteria That Must Be Satisfied For Expense Treatment
      Under Section 174.......................................51
      1. The Expenditures Must Be For Research or
          Experimentation.....................................52
      2. The Expenditures Must Be Paid or Incurred on Behalf
          of the Taxpayer.....................................64
      3. The Expenditures Must Be Paid or Incurred in
          Connection with the Taxpayer's Trade or Business....68
  B. Negligence..............................................77
      1. Petitioners Glassley and Houser.....................78
      2. Dr. Mahoney.........................................82
  C. Increased Interest......................................82

             MEMORANDUM FINDINGS OF FACT AND OPINION

     DAWSON, Judge:   These cases were assigned to Special Trial

Judge Norman H. Wolfe pursuant to the provisions of section
                                                       - 3 -

7443A(b)(4) and Rules 180, 181, and 183.2                                The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.

                               OPINION OF THE SPECIAL TRIAL JUDGE

         WOLFE, Special Trial Judge:                          Respondent determined

deficiencies in and additions to petitioners' Federal income

taxes as follows:
                                                 Additions to Tax
Petitioners       Year    Deficiency      Sec. 6653(a)(1) Sec. 6653(a)(1)       Sec. 6659
                                                                           1
    Glassley      1981    $20,222.00            $1,011.00                            -
                                                                           2
    Mahoney       1981     23,283.00             1,164.15                        $6,984.90
                                                                           3
    Houser        1981     19,476.06             1,337.12                                -
                                                                           4
                  1982        160.00               277.35                                -
         1
           50   percent   of   the   interest   due   on   $20,222.
         2
           50   percent   of   the   interest   due   on   $23,283.
         3
           50   percent   of   the   interest   due   on   $19,476.06.
         4
           50   percent   of   the   interest   due   on   $160.

In the statutory notices of deficiency for petitioners Stephen H.

Glassley and Judith S. Glassley (petitioners Glassley) and

petitioner Paul S. Mahoney (Dr. Mahoney), respondent also

determined that the provision for increased interest under

section 6621(c)3 applied.                       Subsequently, respondent asserted by

first amendment to answer that petitioners Edward F. Houser, Jr.,

2
     All section references are to the Internal Revenue Code in
effect for the tax years in issue, except as otherwise indicated.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
3
     Sec. 6621(c) was repealed by sec. 7721(b) of the Omnibus
Budget Reconciliation Act of 1989 (OBRA 89), Pub. L. 101-239, 103
Stat. 2106, 2399, effective for tax returns due after Dec. 31,
1989, OBRA 89 sec. 7721(d), 103 Stat. 2400. The repeal,
therefore, does not affect the instant cases.
                               - 4 -

and Kathryn G. Houser (petitioners Houser) were liable for

increased interest under section 6621(c).4    Respondent concedes

that there is no addition to tax due from Dr. Mahoney under

section 6659.

     The issues remaining for decision are:    (1) Whether

petitioners are entitled to deduct losses relating to their

investments in a limited partnership, Jojoba Development

Partners, Ltd., which arose principally from that partnership's

deduction of purported research and development expenditures paid

or incurred during 1981; (2) whether petitioners are liable for

additions to tax for negligence; and (3) whether petitioners'

underpayments of tax are attributable to a tax-motivated

transaction for purposes of computing increased interest pursuant

to section 6621(c).

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and are so found.

The stipulation of facts and exhibits attached thereto are

incorporated herein by this reference.

A.   Background

     1.   The Jojoba Industry in General

     The jojoba plant is a shrub that is native to the Sonoran

Desert region in Arizona, California, and Mexico.    A jojoba plant


4
     Respondent asserted also by first amendment to answer that
Dr. Mahoney was liable for increased interest under sec. 6621(c).
Respondent had determined in the statutory notice of deficiency
as well that the provision for increased interest under sec.
6621(c) applied.
                                - 5 -

may live well over 100 years.   The female jojoba plant produces a

seed, sometimes referred to as a bean, that contains

approximately 50 percent by weight of an unusual oil.   Jojoba oil

is actually a liquid wax ester, unlike the triglyceride oils

typically produced by plants, and is similar to sperm whale oil.

     It takes 5 years or more for a jojoba plant to produce seeds

in a harvestable quantity.   Approximately 20 pounds of jojoba

seeds are needed to produce 1 gallon of jojoba oil.    Jojoba oil

is useful for a variety of purposes, ranging from cosmetics and

shampoos to industrial lubricants.

     The ban in 1971 on the importation of sperm whale oil and

products using that oil stimulated an interest in the commercial

production of jojoba oil.    During the nineteen seventies and into

the early nineteen eighties, jojoba oil was available only from

native jojoba plants.   At that time in the United States, there

were only a few commercial-sized jojoba plantations, all of which

were in developmental stages.   Domestication studies were being

conducted in the United States during that time at the University

of California at Riverside and the University of Arizona, among

other places.

     2.   Carole A. Whittaker

     Prior to 1978, Carole A. Whittaker (Whittaker) taught

mathematics and science, primarily chemistry, at the high school

through college levels.   Whittaker became generally interested in

the jojoba plant and its seed during 1976 or 1977.    She left her
                               - 6 -

teaching position in 1978 to consider entering private business

and then took a sabbatical year, during which she investigated

jojoba more intensively.   By the end of 1978, she had decided to

plant and farm jojoba as a business.   From 1978 through 1980,

Whittaker read extensively on the subject, attended international

conferences on jojoba, and consulted various authorities in the

field, including Dr. Demetrios Yermanos (Yermanos)5 of the

University of California at Riverside and Dr. Lemoyne Hogan of

the University of Arizona.

     From September 1978 through the spring of 1979, Whittaker

searched for a location on which to develop a commercial jojoba

plantation.   Whittaker had experience in science and project

management but she had no experience in economics or business.

She therefore also sought advice during that time from friends

and colleagues about how to develop a commercial jojoba

enterprise.

     By June 1979, Whittaker identified a section of land in

Hyder, Arizona, on which to develop a commercial jojoba

plantation.   At that time, with some associates, she formed Hyder

Jojoba, Inc. (HJI), a subchapter S corporation organized under

the laws of Arizona.   Whittaker became HJI's president and

chairman and was its principal shareholder.



5
     Dr. Demetrios Yermanos, a noted expert on the jojoba plant,
was recognized worldwide as a leader in the domestication of that
plant for commercial purposes.
                                  - 7 -

       During August 1979, HJI acquired a 640-acre parcel of

partially developed land in Hyder, Arizona, and began farm

development.     A small planting of jojoba undertaken in the fall

of 1979 failed.     Extensive planting of jojoba plants began in the

spring of 1980.     HJI had planted 400 acres of jojoba by the fall

of 1980.     Planting of the remaining 240 acres was completed in

1981 with the help of financing provided by Hyder Jojoba Partners

(HJP), a farming partnership.     HJI was the general partner of

HJP, provided farm management services to HJP, and leased land to

HJP.

       3.   Joseph E. Berberich

       Joseph E. Berberich (Berberich) is a partner in the law firm

of Manning, Leaver, Bruder, and Berberich, located in Los

Angeles, California.     He is involved primarily in a commercial

and business practice of law.     His law firm was not directly

involved in the transactions in issue in the instant cases.

       Berberich became interested in jojoba in 1979 after reading

in World Market Perspective, an industrial newsletter, an article

entitled "Jojoba, Super Bean of the Future".     Berberich began

reading more about jojoba and decided to invest in jojoba with

three of his friends who shared an interest in such a project.

He traveled with those friends to a number of jojoba plantations

located in Southern California and in Arizona.     Berberich also

read a number of private offering memoranda relating to
                                - 8 -

investments in jojoba.    He attended an all-day seminar on jojoba

given by Yermanos at the University of California at Riverside.

     Sometime during late 1980, Berberich met Whittaker in Los

Angeles, California.    He was impressed with her scientific

background and with the fact that her father was William

Whittaker, founder of the Whittaker Corp., which was a publicly

traded company.   Berberich traveled with his friends to Hyder,

Arizona, and examined the jojoba plantation planted by HJI there.

To invest in Whittaker's jojoba farming, Berberich and his

associates became the first limited partners in HJP.    At that

time, Berberich had no prior experience in agriculture or

agricultural investments.

     Whittaker, Berberich, and others believed that the

successful commercialization of jojoba depended on the industry's

developing a significant and stable supply of jojoba seed.

Following discussions with Berberich, during late summer or early

fall of 1981, Whittaker developed a preliminary proposal relating

to research regarding plant selection and propagation, nutrient

applications, water requirements, and pollination requirements

that might be conducted in connection with a jojoba limited

partnership investment.    During 1981, Whittaker and Berberich

agreed that Berberich would form, and serve as the general

partner of, a new limited partnership named Jojoba Development

Partners, Ltd. (JDP).    The decision to form this partnership had

been made, at least in principle, by the time Whittaker prepared
                                 - 9 -

her draft proposal concerning research possibilities.     To be

attractive to potential investors and raise the funds that HJI

needed to develop its jojoba plantation, the limited partnership

had to provide substantial tax benefits and had to be formed near

the end of 1981.

     4.    Jojoba Development Partners, Ltd.

     a.    The Private Offering Memorandum

     With the assistance of counsel, Berberich prepared a private

offering memorandum (the offering) relating to JDP.     The offering

was dated November 19, 1981, and represented that a minimum of 22

and a maximum of 65 limited partnership units in JDP would be

sold.     According to the offering, JDP was to be "organized to

perform research and experimentation for the development of a

particular strain of jojoba plant and seeds which can be planted,

grown and harvested in a commercially feasible manner and which

will produce a commercial yield of jojoba beans or seeds."     The

offering identified HJI as the contractor selected to carry out

the research and development (R & D) program under an R & D

Agreement pursuant to which HJI would develop a so-called

experimental plantation.     This plantation (hereafter the "small

plantation") was to consist of a minimum of 160 acres and a

maximum of 464 acres, depending on whether the minimum or maximum

number of limited partnership units was sold on land located in

the Hyder Valley of Arizona.     Potential investors in JDP were

advised that the offering would be terminated and any payments
                             - 10 -

received, together with any accrued interest, would be refunded

if the minimum number of limited partnership units were not sold

on or before December 21, 1981, but that, if the minimum number

of units were so sold by December 21, 1981, JDP would be formed

and the offering would continue until the maximum number of such

units was sold or until March 31, 1982, whichever occurred first.

     The offering further indicated that JDP intended to

determine, on or before December 31, 1986, whether to convert the

small plantation into a commercial plantation for the growing,

harvesting, processing, and marketing of jojoba plant material,

beans or seeds, oil, and products derived from the jojoba plants.

According to the offering, JDP would continue only if it decided

that growing the strain of jojoba developed under the R & D

program on a commercial basis was feasible, either for JDP alone

or in a joint venture with HJI.

     The principal investment objectives of the Partnership

specified in the offering were as follows:

          (1) To conduct a comprehensive research and
     development program on the jojoba plants on the
     experimental plantation with the objective of
     developing a strain of jojoba which can be planted,
     grown and harvested on a commercially feasible basis
     and which will produce a commercial yield of jojoba
     beans;

          (2) If the R & D Program is successful, to convert
     the experimental plantation to a commercial plantation
     in 1987 and operate such plantation for profit;

          (3) To provide cash distributions to the Limited
     Partners commencing in 1987, or as early thereafter as
                             - 11 -

     possible, through the operation of the commercial
     plantation; and

          (4) To generate tax losses in 1981 which can be
     used to offset the taxable income from other sources.6

     In the "Investor Suitability Standards" section of the

offering, potential investors were further advised that, because

of the risks and benefits involved, the offering was restricted

to persons who made a minimum purchase of one limited partnership

unit at a cost of $50,000 per unit, unless the general partner

permitted the purchase of a fraction of a unit, and who had

either a net worth, exclusive of home, furnishings, and

automobiles, of at least $200,000 and taxable income in 1980,

some portion of which was subject to Federal income tax at a rate

of 50 percent or more, or a net worth, exclusive of home,

furnishings, and automobiles, of at least $300,000.   Potential

investors were informed that investors in higher Federal income

tax brackets should be able to utilize more fully certain income

tax deductions generated by JDP.

     Potential investors were advised that an investor

subscribing to one limited partnership unit would have to pay

$15,000 in cash at the time of subscription and the balance of

$35,000 by the execution and delivery of a promissory note,

bearing interest at the rate of 10 percent per year on the unpaid


6
     In the text we have employed the term "small plantation" to
describe the initial operations of the JDP partnership instead of
the pejorative term "experimental plantation" employed in the
promotional literature.
                              - 12 -

principal balance, payable $15,000 on May 1, 1982, $10,000 on May

1, 1983, and $10,000 on May 1, 1984, plus any accrued interest on

the note.   Potential investors were informed that the note would

be on a full recourse basis to the limited partner and that, in

the event of default, a limited partner would be subject to

expulsion from the partnership, in the discretion of the general

partner, and to deferral of his rights to return of capital.

     According to the offering, the limited partners would own a

collective capital percentage of 99 percent up to the point of

recoupment, defined as the point at which the total of the

cumulative net profits allocated to the limited partners equaled

50 percent of the total of the cumulative net losses allocated to

them, after which the limited partners would own a collective

capital percentage of 90 percent.   The general partner would own,

as consideration for his capital contribution of $1,000, a

partnership interest of 1 percent up to the point of recoupment

and an interest of 10 percent thereafter.

     The offering advised potential investors that, in addition

to his profits interest, the general partner would receive a fee

for 1981 of $10,000 as compensation for his services rendered in

connection with the formation of JDP.   In addition, commencing in

1982, the general partner would receive a yearly fee as

compensation for his services in managing the day-to-day affairs

of JDP, in the respective amounts of $10,000 per year for 1982

through 1987, $15,000 per year for 1988 through 1992, $20,000 per
                             - 13 -

year for 1993 through 1998, and $25,000 per year thereafter until

termination of JDP.   Furthermore, the general partner would be

reimbursed for any costs he or his affiliates incurred on behalf

of the partnership, including organizational and offering

expenses, accounting and other services, and operational

expenses.

     The offering further indicated that if the minimum number of

partnership units were sold and 160 acres were planted, HJI would

receive a fee of $960,000 ($250,000 in cash at execution of the

agreement and the balance payable in 1982 through 1985), while if

the maximum number of partnership units were sold and 464 acres

were planted, HJI would receive a fee of $2,784,000 ($764,000 in

cash in 1981 and the balance payable in 1982 through 1985).    The

offering, however, cautioned that:

     The Partnership will be funded with contributions of
     not less than $1,100,000 nor more than $3,250,000. The
     size of the R & D Program will be affected by the
     amount of funds at the Partnership's disposal. If the
     Partnership receives only the minimum amount of
     proceeds it will be able to develop a 160 acre
     experimental jojoba plantation and will have a reduced
     ability to conduct the degree of research and
     experimentation respecting propagation, watering and
     fertilizing techniques it otherwise would do and to
     complete research and experimentation on a larger seed
     population, all of which, consequently, may reduce the
     Partnership's chances of developing a superior jojoba
     plant strain. Such a result would increase the risks
     associated with the venture. If only the minimum or
     near minimum number of Units is sold, the Partnership
     will have to pay higher Organization and Offering
     Expenses per Unit than if it received the maximum or
     near maximum amount of proceeds from the sale of Units.
     * * * The number of acres under the R & D Program will
     increase in accordance with the size of the offering
                              - 14 -

     and dealing with a relatively fewer number of acres in
     the R & D Program or any subsequent commercial venture
     will entail additional risks of casualty, economic and
     environmental problems and other matters, the risks of
     which could be absorbed or compensated for in an R & D
     Program or venture with a larger number of acres in
     various locations.

     Attached to the offering was a copy of a 33-page tax opinion

letter dated November 17, 1981, issued by Kaplan, Jacobowitz,

Hendricks & Bosse, P.A., a law firm located in Phoenix, Arizona,

which served at that time as counsel to HJI.   Projections

calculated by HJI also were attached to the offering.    These

projections concerned the tax impact and possible returns to

partners based on various estimates and assumptions derived from

HJI's "past experience in developing a jojoba plantation, the

relatively limited yield data available and its research

respecting the cultivation of jojoba."   Contrasting projections

were provided on the premise of the development of a 160-acre

plantation and sales of 22 partnership units and on the premise

of the development of a 464-acre jojoba plantation and sales of

60 partnership units.   Unexecuted copies of the certificate and

agreement of limited partnership and certificate of fictitious

name, subscription agreement, promissory note, offeree

questionnaire, offeree representative questionnaire, research and

development agreement, option and joint venture agreement, option

and farm lease agreement, and farm lease were attached to the

offering.
                                - 15 -

       In addition to the claim of an immediate full tax deduction,

the promoters of JDP made a sales presentation concerning the

profit potential of the jojoba industry and the idea that the

purchase of a partnership unit was a good investment.     The

offering, however, did not attract as many investors as the

promoters had hoped.     By December 21, 1981, six limited partners

had each subscribed to one full partnership unit in JDP.       By

December 28, 1981, an additional two limited partners had each

subscribed to one full partnership unit in JDP and two limited

partners had each subscribed to a one-half partnership unit in

JDP.    No limited partner acquired a partnership unit in JDP after

December 28, 1981.     Berberich, in his capacity as general

partner, nonetheless executed the certificate and agreement of

limited partnership and certificate of fictitious name of JDP on

December 31, 1981.     Such certificate was recorded in the official

records of Yuma County, Arizona, on December 31, 1981.     Under the

limited partnership agreement, no limited partner was required to

make any capital contribution beyond the initial capital

contribution, and no limited partner was liable for the expenses,

liabilities, or obligations of JDP.

       b.   The Research and Development Agreement

       On December 31, 1981, Berberich, as general partner of JDP,

and Whittaker, as president of HJI, executed a research and

development agreement (R & D Agreement).     The R & D Agreement

represented that HJI was experienced in the planting and
                              - 16 -

cultivation of jojoba plants and could conduct research and

experimentation work relating to the scientific development of a

plant strain with fast, hardy growth characteristics and high,

stable seed yields, which could be planted, grown, and harvested

in a commercially feasible manner.     The R & D Agreement also

stated that JDP anticipated that HJI would conduct such research

and experimentation work.   In the R & D Agreement, HJI agreed to

use its best efforts to carry out the research and development

program (R & D Program) described below:

          2. Description of Program. The R & D Program to
     be conducted by HJI, on the terms and subject to the
     conditions and payments set forth in this Agreement,
     shall consist of the following:

          2.1 Experimental Plantation. HJI will acquire
     the ownership or use of such land, buildings,
     machinery, equipment and other property, and will
     provide all personnel and materials, necessary to
     develop and establish an experimental jojoba plantation
     (the "plantation"). The plantation shall consist of 60
     acres and shall be located on a site selected by HJI in
     the Hyder Valley area of Yuma County, Arizona. The
     site of the plantation may be purchased or leased from
     an affiliate of HJI.

          2.2 Plant Strain. HJI will conduct original
     research into a particular jojoba plant strain. It
     will then select both propagating seeds and plant
     cuttings for planting and cultivation in controlled
     areas of the plantation. The growth characteristics of
     the plants will be closely observed, and replacement
     will be made if and when HJI determines that it is
     appropriate to the experimentation process and
     economically feasible.

          2.3 Cultivation Techniques. The plantation will
     be divided into separate areas, with each area
     subjected to various forms of experimental husbandry.
     The variations will include research and
     experimentation in soil conditions, methods of
                              - 17 -

     propagation, fertilization and watering. Each
     experiment shall be conducted in a scientific manner
     and closely monitored.

          2.4 Results. The plant characteristics in each
     area of the plantation and the progress of plant growth
     will be recorded. The nature and results of each
     experiment conducted in the plantation will likewise be
     recorded.

          2.5 Conclusion. The R & D Program will be
     concluded, and HJI's obligations under this Agreement
     fulfilled, on December 31, 1986.

     Pursuant to the R & D Agreement, JDP agreed to pay HJI

$360,000 as full compensation for the conduct of the R & D

Program on the 60-acre jojoba plantation, of which amount $85,000

was due upon the signing of the R & D Agreement and the remaining

$275,000 was payable according to the terms of recourse notes to

be delivered to HJI upon the signing of the R & D Agreement.     The

R & D Agreement indicated that HJI had allocated $200 per acre of

the contract fee for the purchase of water and the installation

of a water delivery system for the small plantation but that JDP

would pay an additional sum, up to a maximum of $50,000, in the

event that the actual cost of providing water to the small

plantation exceeded $200 per acre.     The R & D Agreement stated

that all costs and expenses of the R & D Program were the sole

responsibility of HJI.   In addition, it stressed that all

payments due on the Notes were:

     required by HJI to enable it to commence and carry out
     the R & D Program, and are not in any way conditioned
     on HJI's performance under this Agreement. If HJI has
     received timely payment and then fails to perform as
     agreed, the Partnership may bring suit for damages or
                              - 18 -

     specific performance, but further payments due under
     the Notes may not be withheld. No part of any sums
     paid by the Partnership to HJI shall be refundable for
     any reason, nor shall the Partnership be entitled to
     withhold payment to HJI * * *.

     The R & D Agreement stated that the parties did not

contemplate that the R & D Program would result in any inventions

or patents.   However, the agreement indicated further:

     It is contemplated that the R & D Program will result
     in discoveries, technology and other information which
     may or may not be proprietary. In any case, either
     party to this Agreement may use any information,
     discovery or technology resulting from the R & D
     Program in any manner and for any purpose desired.

     The R & D Agreement also provided that it "is contemplated

by the parties that if the R & D Program produces successful

results, the small plantation will be converted into a commercial

jojoba farm and thereafter operated for profit by or on behalf of

* * * JDP" pursuant to certain option agreements entered into

simultaneously with the R & D Agreement.   The R & D Agreement

stated further that all property of any kind, real, personal, or

mixed, acquired by HJI in connection with the R & D Program would

be the property of HJI, and that JDP would have no interest in or

rights to such property arising from the R & D Agreement or

otherwise.

     The R & D Agreement stated also that HJI made no

representation or guarantee of any kind with respect to the R & D

Program or the results thereof.   In addition, the R & D Agreement

provided that HJI had not agreed to conduct the R & D Program on
                                  - 19 -

an exclusive basis for JDP and was free to engage in any other

activities, including other research and development, whether for

itself or for others.

      JDP paid all of the $360,000 contract price required under

the R & D Agreement to HJI as follows.       By check dated December

30, 1981, JDP paid HJI $85,000 pursuant to the R & D Agreement.

On December 31, 1981, JDP issued to HJI five promissory notes

bearing interest at the rate of 10 percent per year.      The face

amounts of the notes, dates payable, and amounts and dates of

payment are as follows:

    Face Amount
      Payable        Date Payable          Amount Paid      Date Paid

      $80,000            6/1/82            $82,933.33       5/12/82
       50,000           10/1/82             53,750.30       9/29/82
       60,000           10/1/83             70,500.00       9/29/83
       45,000           10/1/84             57,375.00       9/26/84
       40,000           10/1/85                  1              1

1
 Information not provided in the record.

The promissory notes contained no restrictions or nonrecourse

features.

      When Whittaker and Berberich signed the R & D Agreement,

they both understood that HJI would not undertake for JDP all of

the activities specified in section 2 of the R & D Agreement

because the offering had not raised sufficient funds.      Having

failed to raise sufficient funds to carry out the program

described in the offering circular, on December 31, 1981,
                              - 20 -

Berberich intended to form another limited partnership that he

hoped would attract additional investors.

     Whittaker and Berberich anticipated that any discoveries

resulting from research or experimentation activities on the

jojoba plants or from their domestication on the plantations

operated or managed by HJI or its affiliates (hereinafter

collectively referred to as Hyder Jojoba plantations) would be

shared with other jojoba plantation operators so that marketable

supplies of jojoba seed would be available.   Whittaker recognized

that any information gathered about jojoba grown in one

environment might have no relevance to jojoba grown in a

different environment.

     c.   The Option and Joint Venture Agreement

     On December 31, 1981, Berberich, as general partner of JDP,

and Whittaker, as president of HJI, additionally   executed an

option and joint venture agreement.7   Under that agreement, HJI

was given an option, exercisable by notice to JDP not later than

September 15, 1986, to undertake the conversion of the small

plantation to a commercial farming operation if, not later than

August 1, 1986, the parties had agreed in writing that the R & D

Program had produced a strain of jojoba plant that they wished to

grow on a commercial basis.


7
     We use the term joint venture for convenience. Such
designation should not be taken as a determination of the legal
effect of the option and joint venture agreement or of the nature
of any farming operations undertaken pursuant to such agreement.
                               - 21 -

     Under the option and joint venture agreement, if HJI

exercised the option, the resulting joint venture would commence

on January 1, 1987, and continue until December 31, 2011.    No

initial capital was to be contributed by the joint venturers.

Instead, the only capital of the joint venture would be

accumulated capital in the form of undistributed earnings of the

joint venture.   The working capital required by the joint venture

for the first fiscal year would be supplied either by loans from

HJI or from other lenders.    No property was to be acquired by the

joint venture except for cash and short term investment

securities and consumables, such as propagating seed, plant

cuttings, fertilizer, herbicide, and other miscellaneous

supplies, to be used within 1 year.     Any other property needed to

conduct the business of the joint venture was to be furnished by

HJI or third parties.    The joint venture however was to pay HJI

the fair rental value of all property furnished by HJI or its

affiliates, but in no event more than it would cost to rent

comparable property in the open market.

     Pursuant to the option and joint venture agreement, the net

profits or net losses of the joint venture would be divided among

the joint venturers as follows:    90 percent to JDP until the date

upon which JDP had received distributions from the joint venture

in the amount equal to the principal sums (but not interest) paid

by JDP to HJI under the R & D Agreement (recoupment), and

thereafter 65 percent.   The corresponding allocation was 10
                              - 22 -

percent to HJI until recoupment and thereafter 35 percent.

Distributions were to be made to the joint venturers in the same

proportion as profits and losses were to be shared.

     Under the option and joint venture agreement, HJI was given

sole and exclusive authority over all of the business and affairs

of the joint venture.   The joint venture was to have no employees

at any time.   Rather, all personnel required to conduct the

business of the joint venture were to be furnished by HJI and

would be the employees solely of HJI.   The joint venture,

however, was to pay HJI monthly for the direct cost of all

personnel employed in the business of the joint venture plus a

personnel administrative fee of 15 percent of such cost.     In

addition, as compensation for its services in managing the joint

venture, HJI was to receive a general administrative fee in a sum

equal to $150 for each acre of land devoted to the farming

operations of the joint venture, plus cost of living increases.

     Under the option and joint venture agreement, HJI was given

the right and option any time on or after January 1, 1997, to

purchase for their fair market value all rights and interest of

JDP in the joint venture.   The option and joint venture provided

further that upon dissolution for any reason other than by such

purchase:

     the affairs of the Joint Venture shall be liquidated
     forthwith. The assets of the Joint Venture shall first
     be used to pay or provide for all debts of the Joint
     Venture, including all accrued and unpaid operating
     expenses. If the assets are not sufficient to pay
                             - 23 -

     these obligations, the Joint Venturers shall
     contribute, in the same proportion as they share
     profits and losses, the capital necessary to pay such
     obligations in full. Thereafter, all moneys in the
     capital accounts of the Joint Venturers shall be paid
     to the Joint Venturers respectively entitled thereto.
     Then the remaining assets shall be divided according to
     the proportionate interests of the Joint Venturers on
     the basis that they share in profits and losses on the
     date of such dissolution * * *.

     During March 1983, Berberich, as general partner of JDP, and

Whittaker, as president of HJI, executed an amendment to the

option and joint venture agreement that, among other things,

changed the distribution of profits after recoupment to 66-2/3

percent to JDP and 33-1/3 percent to HJI.   The amendment to the

option and joint venture agreement in addition gave JDP the right

and option between November 1, 2011, and December 31, 2011, to

require HJI to purchase all of JDP's interest and rights in the

joint venture.

     For convenience, we shall use the name "Turtleback Jojoba

Venture" hereinafter to refer to the joint venture that HJI and

JDP agreed to form pursuant to the option and joint venture

agreement.

     d.   The Farm Lease

     On December 31, 1981, HJI entered into a farm lease with

Whittaker Jojoba Corporation (Whittaker Jojoba).8   Under the farm


8
     Whittaker formed Whittaker Jojoba during 1981. Until it was
merged into HJI in 1982 or 1983, Whittaker Jojoba owned the land
and plants allocated to JDP pursuant to the various agreements
that the respective parties entered into on Dec. 31, 1981.
                                                   (continued...)
                              - 24 -

lease, Whittaker Jojoba agreed to lease to HJI certain property9

near Hyder, Arizona, for a period of 5 years commencing on

January 1, 1982, at a rental of $12,000 per year.    In addition,

if HJI and JDP agreed to form the Turtleback Jojoba Venture, HJI

was given the option under the farm lease to extend the lease

term until December 31, 2011, for a yearly rental of $12,000 plus

10 percent of gross income exceeding $12,000.   Gross income was

defined as all income of any kind derived by the lessee from

business conducted on or from the property.

     e.   The Option and Farm Lease Agreement

     On December 31, 1981, JDP and Whittaker Jojoba entered into

an option and farm lease agreement.    That agreement provided in

pertinent part that, if HJI decided not to enter into the

Turtleback Jojoba Venture, then, effective January 1, 1987, JDP

was given an option to lease the property described in the farm

lease on substantially the same terms and conditions as set forth

in the farm lease.   The option and farm lease agreement did not

transfer to JDP any ownership rights to land, plants, equipment,

or any real or personal property.


8
 (...continued)
During 1981, shareholders of Whittaker Jojoba included, among
others, Whittaker and Berberich. As a result of the merger of
Whittaker Jojoba into HJI during 1982 or 1983, Berberich became a
shareholder of HJI.
9
     The legal description attached to the lease describes the
property as: "The westerly 1,980 feet of the north half of the
northwest quarter of Section 22, Township 4 South, Range 11 West,
Gila and Salt River Base and Meridian."
                                - 25 -

     5.   Petitioners

     a.   Petitioners Stephen H. Glassley and Judith S. Glassley

     Petitioners Glassley resided in Fort Wayne, Indiana, at the

time they filed their petition in the instant cases.    During

1981, petitioner Stephen H. Glassley (Dr. Glassley) worked as a

physician, and petitioner Judith S. Glassley (Mrs. Glassley)

worked as a medical assistant in Fort Wayne, Indiana.

Petitioners Glassley reported adjusted gross income of $72,323 on

their 1981 Federal income tax return.

     Dr. Glassley became interested in jojoba after reading about

the plant in the Wall Street Digest, an investment newsletter

written by Donald Rowe (Rowe).    Dr. Glassley had a high regard

for Rowe's investment advice.    In September 1981, Dr. Glassley

read more about jojoba and decided that an investment in jojoba

might be a way to add to his retirement income.    Mrs. Glassley

then wrote to Rowe to ask about potential jojoba investment

opportunities.   In response, petitioners Glassley were provided

with the names of two individuals, one of whom was Whittaker.

Berberich telephoned petitioners Glassley in response to a letter

they had written to Whittaker.    Dr. Glassley was impressed by

what Berberich said about jojoba and Whittaker.

     Following their telephone conversation, Berberich mailed a

copy of the offering circular to petitioners Glassley.    They

studied the offering, including the tax opinion, and discussed it

with their certified public accountant who had glanced at the tax
                              - 26 -

opinion.   Dr. Glassley was impressed with Whittaker's

credentials.

     On December 15, 1981, petitioners Glassley subscribed to one

partnership unit of JDP at a cost of $50,000.    As a result of

their capital contribution to JDP, petitioners Glassley acquired

an 11.1-percent capital interest in JDP.   Also on December 15,

1981, they executed the signature page to the certificate and

agreement of limited partnership and certificate of fictitious

name, offeree questionnaire, and a promissory note in the amount

of $35,000 payable to JDP in installments of $15,000 on or before

May 1, 1982, $10,000 on or before May 1, 1983, and $10,000 on or

before May 1, 1984, together with interest of 10 percent per year

of the unpaid balance.   Petitioners paid to JDP or its escrow

agent $15,000 on December 15, 1981, $16,160 on April 26, 1982,

$12,000 on April 29, 1983, and $11,000 on April 30, 1984.

     Dr. Glassley maintained his interest in the jojoba plant and

its commercialization.   He continued to read about jojoba and

together with Mrs. Glassley attended an international conference

on jojoba held in Tucson, Arizona, during 1982.    Petitioners

Glassley also traveled to Hyder, Arizona, and visited the jojoba

plantation during 1982, 1983, and 1985.

     Dr. Glassley would not have invested in JDP if he had

thought the joint venture would not be formed.    He was interested

in making a profit from his investment and believed that there

could be no profits without the formation of the joint venture.
                              - 27 -

According to Dr. Glassley, he expected to recoup his investment

in JDP and earn a few thousand dollars each year for at least 20

years as a result of the commercialization of the jojoba

plantation.   He also was aware of and attracted by the potential

tax benefits outlined in the offering with respect to an

investment in JDP.

     On their 1981 Federal income tax return, petitioners

Glassley claimed a net loss relating to JDP of $40,530, resulting

in a tax benefit of approximately $20,000.   By notice of

deficiency dated March 17, 1989, respondent disallowed the

partnership loss relating to JDP that petitioners Glassley had

claimed for 1981 on the grounds that they had not established:

     (1) The claimed amounts arose from transactions that had a
bona fide business/economic purpose or substance, or intent to
make a profit apart from the intended tax consequences of such
transactions;

          (2) The research and development expenses were
     not [sic] incurred in connection with a trade or
     business within the meaning of Internal Revenue Code
     Section 174;

          (3) The expenses claimed by the partnership were
     incurred or paid by the partnership, or if incurred or
     paid, the expenses were not [sic] ordinary and
     necessary business expenses;

          (4) Your basis in the partnership is sufficient
     to entitle you to claim a partnership loss deduction,
     or;

          (5) The partners are "at risk" within the meaning
     of Internal Revenue Code Section 465.
                              - 28 -

     b.   Petitioner Paul S. Mahoney

     Dr. Mahoney resided in Los Angeles, California, at the time

he filed his petition in the instant cases.   During 1981, he

worked as a physician.   Dr. Mahoney reported adjusted gross

income of $175,155 on his 1981 Federal income tax return.

     On December 11, 1981, Dr. Mahoney subscribed to one

partnership unit in JDP for a price of $50,000.   As a result of

his capital contribution to JDP, Dr. Mahoney acquired an 11.1-

percent capital interest in JDP.   Also on December 11, 1981, he

executed the signature page to the certificate and agreement of

limited partnership and certificate of fictitious name, offeree

questionnaire, and a promissory note in the amount of $35,000

payable to JDP in installments of $15,000 on or before May 1,

1982, $10,000 on or before May 1, 1983, and $10,000 on or before

May 1, 1984, together with interest of 10 percent per year of the

unpaid balance.   Dr. Mahoney paid to JDP or its escrow agent

$15,000 on December 15, 1981, $16,160 on April 18, 1982, $12,000

on April 18, 1983, and $11,000 on May 1, 1984.

     On his 1981 Federal income tax return, Dr. Mahoney claimed a

net loss relating to JDP of $40,529.   By notice of deficiency

dated June 21, 1989, respondent disallowed the partnership loss

relating to JDP that Dr. Mahoney had claimed for 1981 on the

grounds that he had not established:

     any amount was paid pursuant to a research and
     development agreement or, if paid, that such
     expenditures were not preconceived shams lacking
     economic substance.
                               - 29 -

     Alternatively, the amount deducted by the partnership
     as research and development expenses has been
     disallowed because it has been determined that such
     expenditures do not meet the requirements of I.R.C.
     Section 174.

     In the further alternative, the amount deducted by the
     partnership as research and development expenses has
     been disallowed because it has not been established
     that a profit motive existed when such amounts were
     paid and that the transaction was entered into other
     than solely for tax purposes.

     In the further alternative, the amount deducted by the
     partnership as research and development expenses has
     been disallowed because you have not established:

          (1) That the accrual method is a proper method
     for accounting for research and experimental
     expenditures, or

          (2) That the use of the accrual method by said
     partnership clearly reflects partnership income.

     In the further alternative, you have not established
     that the portion of the amount deducted by the
     partnership as research and experimental expenses that
     is attributable to the note presented by said
     partnership is not contingent or that all events have
     occurred which fix the liability thereof. See I.R.C.
     Section 465.

     Dr. Mahoney also was a partner in HJP.   On his 1981 Federal

income tax return, he claimed a net loss relating to HJP of

$30,172.

     Dr. Mahoney did not testify at trial.

     c.    Petitioners Edward F. Houser, Jr. and Kathryn G. Houser

     Petitioners Houser resided in Lubbock, Texas, at the time

they filed their petition in the instant cases.   During 1981 and

1982, petitioner Edward F. Houser, Jr. (Dr. Houser) worked as a

physician, and petitioner Kathryn G. Houser worked as a realtor.
                                - 30 -

Petitioners Houser reported adjusted gross income of $79,103.92

on their 1981 Federal income tax return and $142,708 on their

1982 Federal income tax return.    Dr. Houser retired from the

practice of medicine in 1991.

     Dr. Houser first became interested in investing in jojoba

during 1978 or 1979 after reading articles about the plant in a

number of investment newsletters.    During 1981, he read Rowe's

jojoba-related articles in the Wall Street Digest.    Dr. Houser

wrote to Rowe, and was referred to Whittaker.    Dr. Houser was

impressed with her credentials and telephoned her.    She referred

him to Berberich, who subsequently sent Dr. Houser a copy of the

offering circular.

     Dr. Houser studied the offering, including the tax opinion.

He discussed the offering with his certified public accountant,

who did not raise any concerns about the potential investment.

Dr. Houser also discussed the offering with his brother, an

attorney, who told Dr. Houser that the law firm issuing the tax

opinion was reputable and that, in the brother's opinion, the

offering looked promising.

     On December 28, 1981, petitioners Houser subscribed to one

partnership unit of JDP at a total cost of $50,000.    As a result

of their capital contribution to JDP, petitioners Houser acquired

an 11.1-percent capital interest in JDP.    Also on December 28,

1981, they executed the signature page to the certificate and

agreement of limited partnership and certificate of fictitious
                              - 31 -

name, offeree questionnaire, and a promissory note in the amount

of $35,000 payable to JDP in installments of $15,000 on or before

May 1, 1982, $10,000 on or before May 1, 1983, and $10,000 on or

before May 1, 1984, together with interest of 10 percent per year

of the unpaid balance.   Petitioners Houser paid to JDP or its

escrow agent $15,000 on December 28, 1981, $16,160 on April 26,

1982, $12,000 on April 23, 1983, and $11,000 on April 27, 1984.

     Dr. Houser was enthusiastic about the jojoba plant's

product development and profit potential.   Petitioners Houser

traveled to Hyder, Arizona, and visited the jojoba plantation

during 1984 or 1985.

     Dr. Houser was interested in making a profit from his

investment in JDP.   According to Dr. Houser, he believed that,

after the jojoba plantation was commercialized and the crop

matured, income from his investment would supplement his

retirement income and help build an estate for the benefit of his

children and grandchildren.   Dr. Houser would not have invested

in JDP if he had not believed that the joint venture would be

formed and that it would be profitable.   He also was aware of and

attracted by the potential tax benefits outlined in the offering

of an investment in JDP.

     On their 1981 Federal income tax return, petitioners Houser

claimed a net loss relating to JDP of $40,529, resulting in a tax

benefit of approximately $20,000.   On their 1982 Federal income

tax return, petitioners Houser claimed a net loss relating to JDP
                              - 32 -

of $320, resulting in a tax benefit of approximately $160.     By

notice of deficiency dated August 21, 1989, respondent disallowed

the partnership losses relating to JDP that petitioners Houser

had claimed for 1981 and 1982 on the grounds:

          1. It has not been established that the
     partnership is engaged in a trade or business or that
     the partnership engaged in the activity with the
     primary purpose of making a profit.

          2. It has not been established that any claimed
     deductions for research and development expenses
     represent an expenditure for or related to research and
     development actually undertaken.

          3. It has not been established that the amount
     proven to be expended, if any, in relation to alleged
     research and development are currently deductible and
     are not capital expenditures.

          4. It has not been established that you had any
     amount at risk, as defined by Section 465 of the
     Internal Revenue Code.

          5. It has not been established that purported
     transactions contained any economic reality or
     substance.

          6. It has not been established that the accrual
     method of accounting clearly reflects the partnership
     income.

          7. It has not been established that any amount
     deducted for research and development expenses was paid
     or incurred in connection with the partnership's trade
     or business.

B.   The Jojoba Plantation

      For convenience, we use the name "Turtleback I" hereafter to

refer to the 80-acre jojoba plantation for which the expenses at

issue in the instant cases ostensibly were incurred.   HJI

purportedly allocated 60 of those acres to JDP and the other 20
                               - 33 -

acres to Jojoba Development Partners, Ltd. II (JDP-II), a limited

partnership formed by Berberich in 1982.    HJI also developed an

additional adjacent 40-acre field of jojoba for JDP-II.10

     Berberich spoke with Whittaker regularly by telephone and

visited the Hyder Jojoba plantations once or twice a year.     In

addition, he spoke with her at the international jojoba

conference held in Tucson, Arizona, in 1982, and at a seminar

held in Los Angeles, California, which was sponsored by the

Arizona Growers Association.    In addition, on occasion Whittaker

sent to Berberich written progress reports or other

correspondence related to jojoba and the jojoba plantations

purportedly allocated to JDP and JDP-II.    Berberich periodically

reported to the JDP limited partners on matters relating to the

partnership.

     When acquired, Turtleback I was a raw parcel of land.

During January and February 1982, the field was surveyed, cleared

of brush, and laser graded.    A water delivery system was

installed and one-half mile of concrete ditch was laid.      During

March the field was prepared for planting by ripping, land-

planing, listing (plowing), pre-irrigating, and relisting.

Turtleback I was planted with jojoba seed on March 19, 1982.     For

that purpose, HJI used seed only from native jojoba plants that

10
     In addition to JDP and JDP-II, HJI managed jojoba
plantations, and served as research and development contractor,
for at least 3 other designated research and development
partnerships in Hyder, Ariz. The record does not reveal who
promoted or served as general partner of those partnerships.
                              - 34 -

were growing in Superior, Arizona.     HJI treated some of those

seeds with fungicide and/or germination hormones during the

planting period but observed no measurable differences in the

plants as a result of such treatment.

     HJI undertook a program to vary the nutrients to be applied

to the jojoba plants on Turtleback I.     Whittaker and Berberich

anticipated that varying the nutrient applications would help HJI

discover how to use nutrient applications to increase seed

productivity of jojoba plants and thereby increase profits.

     In the first written progress report to Berberich as general

partner of JDP, dated August 26, 1982, Whittaker advised JDP,

among other things:

          Due to the limited size of the R & D program under
     contract with Jojoba Development Partners, it will not
     be possible to carry out all of the R & D projects
     planned for a 454-acre project. The 80-acre planting
     for JDP (and JDP II) will allow us to do an excellent
     study on the effects of various nutrient applications.
     Commencing this month we are dividing Turtleback I into
     10 experimental plots and intend to apply the following
     treatments:

          1.   Control: no treatment
          2.   Nitrosul: applied in irrigation water
          3.   Urea: applied directly to plant roots through
               soil
          4.   Urea: foliar application
          5.   Ammonia: applied directly to plant roots
               through soil
          6.   Micronutrients: applied foliarly
          7.   Numbers 6 and 2 combined
          8.   Numbers 6 and 3 combined
          9.   Numbers 6 and 4 combined
         10.   Numbers 6 and 5 combined

          The foliar applications will not begin until at
     least spring of 1983 when there is new growth on the
     plants.
                                - 35 -

          I expect that it will take at least three years
     before we will be able to observe any measurable
     differences from these various treatments. What we
     will be looking for are differences in the rate of
     plant growth, seed yield, leaf tissue analysis and oil
     content of seeds.

     In the second written progress report to Berberich as

general partner of JDP, dated May 24, 1983, Whittaker advised

JDP, among other things, that:

     In recent months I have had the opportunity to discuss
     Jojoba Development Partner's R & D program in detail
     with Drs. Dave Palzkill and Bill Feldman at the
     University of Arizona, with the technical
     representatives of our agri-chemical supply company and
     with our farm staff. Dave Palzkill commented on the
     need for growers in various areas to carry out R & D
     programs such as this and suggested that we compare
     notes with Bob Roth of the U of A Extension Services
     Station. Dr. Palzkill recommended that, rather than
     than [sic] study response to different forms of
     nitrogen (in ammonia vs. nitrate vs. urea) or methods
     of application (in water, soil or foliarly), we would
     do better to study varying amounts over a wider range
     than we had anticipated and to include response to
     phosphorus in the program. He also pointed out the
     need to replicate all trials in the two separate plots.

     Following Dr. Palzkill's recommendations, Whittaker revised

the nutrient application program planned for Turtleback I.

Consequently, the 80 acres of Turtleback I were divided into 14

plots of jojoba plants with 15 rows each.   Seven application

formulations were devised for those 14 plots, consisting of

varying amounts of nitrogen and phosphate and varying application

periods during the year.   Each application formulation was then

applied to 2 of the 14 plots.    The primary purpose of the seven

application formulations was to test how to use nutrient
                               - 36 -

applications to increase the yield and profitability of jojoba

production.

     During 1983, Whittaker, on behalf of HJI, contracted with

Inter Ag Services, Inc. (IAS), headed by Dr. Paul J. Eberhardt

(Eberhardt), to conduct periodic leaf tissue analyses to measure

the effect of the nutrient applications on the jojoba plants.

The leaf analyses indicated that the nitrogen and/or phosphate

applications had no discernable effect on the jojoba plants

growing on Turtleback I.    Results from nutrient applications to

jojoba plants growing in other locations, such as in Desert

Center, California, and at the University of Arizona jojoba

research site, however, had indicated that those jojoba plants

responded positively to nitrogen and/or phosphate applications.

It is common for crops in different environments to respond

differently to nutrients.

     Subsequently, HJI contracted with IAS in February 1985, for

a total contract price of $16,262, to conduct some nutrients

tests to try to determine, among other things, why the jojoba

plants on Turtleback I were not responding to the nitrogen and

phosphorous as had been expected.   Some of the services performed

by IAS for HJI related to the effects on the jojoba plants of

other nutrients, such as zinc, iron, magnesium, and copper, and

were associated with JDP-II.   One of the projects undertaken by

IAS for HJI was performed on jojoba plants that were not located

on Turtleback I.   The work performed by IAS confirmed that
                              - 37 -

additional nitrogen and phosphate applications did not benefit

the jojoba plants on Turtleback I.11   Consequently, HJI

discovered that it would not need to incur costs relating to the

application of those additional nutrients to jojoba grown on

Turtleback I.   As a result of the jojoba leaf tissue analyses,

HJI also learned that the appropriate nutrient levels for a

jojoba plant varied seasonally.   HJI continued the nutrient field

testing on the jojoba plants on Turtleback I beyond December 31,

1986, the expiration date for the R & D Agreement.

     In July 1986, HJI and JDP executed an agreement regarding

the option and joint venture agreement in which both parties

expressed their consensus that the jojoba growing on Turtleback I

could be farmed on a commercial basis and that Turtleback I

should be converted to a commercial jojoba plantation.

Subsequently, on September 11, 1986, Whittaker notified JDP that

HJI had exercised its option to convert Turtleback I to a

commercial farm and form Turtleback Jojoba Venture with JDP

pursuant to the option and joint venture agreement.   During 1987

and 1988, HJI operated Turtleback I as a commercial jojoba




11
     Dr. Eberhardt gave reports on the nutrient tests at various
meetings of the Jojoba Growers Assoc. In addition, during Jan.
1988, he presented an article at the seventh international
conference on jojoba, held in Phoenix, Ariz., in which he relied
on information gathered from the leaf analyses of jojoba plants
grown on the Hyder Jojoba plantations. As a result, that
information is now being used as a guide or baseline for
determining the health of jojoba plants grown in other parts of
the world.
                                 - 38 -

plantation and sold jojoba seeds harvested from jojoba plants

growing there under the name Turtleback Jojoba Venture.

     For 1987, Turtleback Jojoba Venture reported a net farm loss

of $43,929 on Schedule F of its U.S. Partnership Return of

Income, Form 1065.   For 1988, Turtleback Jojoba Venture reported

a net farm profit of $3,890 on Schedule F of its U.S. Partnership

Return of Income, Form 1065.12

     At the same time that HJI exercised its option to enter into

Turtleback Jojoba Venture with JDP, HJI exercised an option to

convert the jojoba plantation purportedly allocated to JDP-II to

a commercial jojoba plantation and to enter into a joint venture

with JDP-II (Turtleback Jojoba Venture II).   Thereafter, HJI

treated Turtleback Jojoba Venture and Turtleback Jojoba Venture

II as one jojoba plantation (TJV).

     During late 1987, Whittaker informed Berberich that the TJV

plantation was in good condition and had excellent prospects for

producing profitable yields of jojoba seeds, but that TJV was out

of funds.   She also indicated that harvesting efficiency was

unacceptably poor and that it would probably take several years

of continued development of machinery, equipment, and systems

before harvesting efficiency would be substantially improved.    In


12
     In the Schedule F for 1988, Turtleback I Venture reported a
farm rent expenditure of only $3,500, rather than the minimum
$12,000 rental fee required under the farm lease. Had Turtleback
I Venture reported the full $12,000 rental fee, the Schedule F
would have reflected a net farm loss of $4,610.
                             - 39 -

addition, she indicated that, although the market price and

demand for jojoba oil were strong and were expected to remain so:

     The jojoba industry in general is reflecting the same
     kind of problems that are being experienced by HJI and
     its affiliates. Virtually all jojoba producers are
     experiencing cashflow problems. Several more years are
     required than were originally predicted to reach
     commercial production. The development of efficient
     harvesting, although steady, has delayed cashflow even
     further. In most cases, the capital required to attain
     positive cashflow is exceeding the amount committed by
     the original investors and the sources for obtaining
     additional funding are severely limited.

Whittaker further suggested, as an alternative to the dissolution

of TJV or the provision by the JDP and JDP-II limited partners of

a working capital loan, a plan:

     calls for the combination of up to 3,000 acres of
     plantations in the Hyder area into a single company
     (which, for want of a better name, we will currently
     call "NUCORP"). A key objective of the plan is to
     develop an entity which is capable of attracting new
     investment capital while preserving the capital of the
     original investors. Under this plan, HJI and all of
     the Partnerships with which HJI is affiliated will be
     invited to contribute their assets to NUCORP in
     exchange for stock in the company. Cash will be raised
     from both existing partnerships and new investors. All
     partnerships will have the opportunity to preserve
     their relative equity positions. However, in order to
     attract new investment capital, the interests of all
     previous capital will have to be subordinated to any
     new contributions.

     The formation of such an entity creates a viable
     vehicle for funding and managing a number of
     plantations which might otherwise fail. The Company
     will attract new investment capital by offering a
     preferred position and lower risk to potential new
     investors. It will be capable of borrowing funds by
     using certain personal guarantees of new key investors
     as well as its assets as collateral for such loans.
     NUCORP should post a profit by 1989 and show
     significant cashflow within a 3- to 5-year period. By
     then, the Company will have several alternatives
                                - 40 -

     including being a favorable candidate for acquisition
     by a larger company or of becoming publicly traded and
     expanding rapidly to meet increasing demand for jojoba
     oil.

     Berberich notified the limited partners of JDP and JDP-II of

Hyder Jojoba plantations' cash flow problems by letters dated

December 21, 1987, and February 10, 1988.    In those letters he

endorsed Whittaker's plan to form a corporation that would

combine into one entity all of the entities then comprising the

Hyder Jojoba plantations.     Subsequently, effective June 30, 1988,

the partners of JDP exchanged their partnership interests for

stock in a new corporation, HJI Holdings, Inc. (Holdings).

Petitioners accordingly became shareholders in Holdings.       As a

result of the exchange, JDP realized ordinary income from

liabilities assumed on the exchange in the amount of $58,495,

which was reflected on its final partnership tax return, filed

for 1988.   In connection with the creation of Holdings, the

partners of JDP and JDP-II were credited with raising capital of

$116,355.49 from sale of the assets of the partnerships and

additional contributions made by partners.13    As a part of the

reorganization, Holdings owns all of the land and assets that HJI

or entities affiliated with HJI had owned.     Following the

reorganization, Holdings farmed approximately 1,300 acres of

jojoba in the Hyder Valley.


13
     The record does not reveal whether any of the petitioners
made any additional capital contributions.
                              - 41 -

C.   The Consequences of Petitioners' Initial Investment

     JDP used the calendar year and the accrual method of

accounting to report its income on its U.S. Partnership Return of

Income, Form 1065, for calendar year 1981 (1981 partnership

return).   On the 1981 partnership return, JDP deducted, among

other things, $360,000 for research and experimental

expenditures.   JDP reported a net loss of $368,45214 on the 1981

partnership return, a proportionate amount of which was passed

through to each partner of JDP.

     From the inception of JDP, its partners intended and

expected HJI to farm jojoba commercially on Turtleback I.    For

the partners to realize a return of their investment in JDP,

commercial farming operations had to be conducted on Turtleback

I.

     HJI had sole responsibility for the farming operations on

Turtleback I.   The $360,000 JDP agreed to pay HJI under the R & D

Agreement was based on a fixed contract price.    HJI placed the

$360,000 in its general funds.    HJI used the $360,000, among

other purposes, to pay the farm lease payments to Whittaker

Jojoba, to prepare the land for farming, including installing the

irrigation system, to purchase jojoba seeds, and to plant and


14
     JDP reported no income on its 1981 partnership return. In
addition to the $360,000 it deducted for research and
experimentation expenditures, JDP deducted $6,250 for legal fees,
$2,000 for accounting fees, and $202 for amortization of
organization costs.
                              - 42 -

cultivate those seeds.   HJI activities did not result in any

patentable technology, nor was any patentable technology expected

to be developed from those activities.     JDP had no right under

any of the various agreements entered into during 1981, or

amendments thereto, to share in any profits from Turtleback I

before January 1, 1987, following the formation of Turtleback

Jojoba Venture.

     During 1988 through 1992, the Hyder Jojoba plantations

produced substantial amounts of jojoba seed.     During 1987, HJI

harvested 76,848 pounds of jojoba seed from 942 acres of jojoba

plants.   During 1988, it harvested 354,615 pounds of jojoba seed

from 1,162 acres.

     As of the date of trial, however, a stable market for jojoba

seed or oil had not evolved and demand for the jojoba seed did

not expand to the extent expected.     For some products, less

expensive synthetic substitutes for jojoba oil were developed

that adversely affected the demand for jojoba seeds.

Consequently, prices for jojoba seeds and oil have fallen.       In

May or June 1993, Holdings cut off irrigation to the jojoba

plants because it had insufficient cash flow to continue

operations.   As a result, as of the date of trial, the income

potential for Turtleback I was small.

     None of the JDP limited partners ever have recovered their

initial investment in JDP.   As of the date of trial, the limited

partners continued to hold their interests in Holdings.
                                - 43 -

D.   The Experts

      1.   Paul H. Gross

      Paul H. Gross (Gross) testified for petitioners relating to

the value of any research or experimentation services that were

to be provided by HJI to JDP pursuant to the R & D Agreement.

Gross is employed by American Appraisal Associates, which is

located in Atlanta, Georgia.    He has professionally valued

fertilizer companies, formulations of fertilizer, application

methods of fertilizer, devices for the applications of

fertilizers, patents thereon, hybrid seed corn varietal strains,

germ plasm pools, and the like.    Gross is qualified to testify in

the instant cases as an expert on valuing research and

development contracts.     Gross concluded that as of December 31,

1981, the value of the R & D Agreement was $382,000.

      According to Gross, the value of the contract at its

inception depended on the qualification of the contractor who

was to perform the services, the plan of activity incorporated in

the contract, and the reasonableness of the payments to be made

under the contract.    In his view, HJI was qualified to perform

the research or experimentation services, based on HJI's and

Whittaker's background, their experience in operating a

commercial jojoba plantation in the Hyder Valley of Arizona, and

their contacts with qualified technical experts.

      Gross used a cost approach to assess the reasonableness of

the payments under the contract.    To estimate the reasonableness
                              - 44 -

of the costs to be performed under the R & D Agreement as of

December 31, 1981, Gross made an analysis of each aspect of the

costs to be incurred in fulfilling that agreement.   For that

purpose, Gross first noted that neither HJI nor Whittaker had

prepared a cost estimate at the time the project was first

entered into nor a project plan outlining what was going to be

done for the consideration.   He also established that at the

outset of the project there was no cost accounting system that

would specifically identify the costs allocated to JDP.     Gross

therefore used data that Whittaker had maintained for 1984

through 1989 to estimate for each activity15 the per acre

contract expenditures that would be required under the contract

on a year-by-year basis.   He quantified these costs on a 60-acre




15
     Gross segmented the activities under the R & D Agreement for
1981 through 1984 as follows:

     For 1981-82: Project planning; land acquisition; land
clearing and planing; installation of irrigation; construction of
the pilot model; initial planting.

     For 1983-84: Cultivation; fertilization (including analysis
and tissue analysis); irrigation; plant growth analysis;
harvesting; yield analysis.

     For 1985-86: Cultivation; irrigation; fertilization
analysis; tissue analysis; harvesting; yield analysis.
                                  - 45 -

       basis and accumulated those total costs throughout the 5-

year period of the contract.      Gross calculated the aggregate

amount of those costs to be about $382,000.16

     In addition, to check the reasonableness of his cost method

analysis and in the absence of a demonstrable income stream,

16
     Because of a poorly reproduced exhibit, we had considerable
difficulty in deciphering the schedule submitted by Gross in his
report in support of his calculation of aggregate costs of
$382,000. Our best approximation of the amounts reflected on
that exhibit are as follows:

           Estimated Annual Contract Expenditures by HJI
               (And Its Subcontractors) in Performing
                Research and Experimentation Services

                                             Year
                         1982       1983       1984     1985       1986

Land Use Charge         $129.25    $129.25   $129.25   $129.25   $129.25
Hourly Labor              61.76     123.51    123.51    123.51     75.44
Equipment Use             20.30      40.59     40.59     40.59     41.44
Irrigation               125.76     126.76    125.76    125.76    108.82
Chemicals                 16.80      33.50     33.50     33.50     58.16
Contract Labor            13.24      25.48     25.48     25.48      6.44
Harvesting Labor             -         -      128.00    128.00    128.00
Consulting (Modeling
 Year 1 Only -
  5 Months effort)     1,466.67       3.20      3.20      3.20     9.25
General Farm
 Maintenance              16.00      16.00     16.00     16.00    16.00
Farm Management           50.00      50.00     50.00     50.00    50.00
   Sub-Total           1,899.78     548.29    675.29    675.29   622.80
Administrative
 and Overhead            379.96     109.78    136.38    136.38   124.56
   Sub-Total           2,279.74     658.07    811.67    811.67   747.36
Profit                   455.96     131.61    162.33    162.33   149.47
   Sub-Total           2,735.69     789.68    974.00    974.00   896.83
Total [for 60
 acres (rounded)]      $164,141    $47,381   $58,440   $58,440   $53,810

       5-year Total    $382,212

     Per Acre Total      $6,370
                               - 46 -

Gross used a cost savings approach; in other words, "the

calculation of the benefit derived from the research performed

and conversion of that savings into a value amount."   Gross

classifies this approach as in a broad category of an income

approach.    According to Gross, for the cost savings approach, he

valued as of December 31, 1986, the discoveries made from the

cost savings that he calculated.

     For his cost savings approach, Gross relied on Eberhardt's

conclusion that the leaf tissue analyses performed by IAS for HJI

indicated that the amount of nitrogen and phosphate routinely

being applied to the jojoba plants on Turtleback I was not

justified.   Gross calculated the savings from not applying the

unneeded fertilizer to be $38 savings per acre, based on $26 of

savings per acre for nitrogen and $12 per acre for phosphate.     He

then used a 10-percent capitalization rate to determine a total

per acre savings value of $380 from not applying unnecessary

nitrogen and phosphate.

     In his report, Gross opined that:

     It is not customary to conduct expensive research and
     experimentation on a pilot model, and then expect the
     pilot operation to provide for recovery of such
     expense. Rather, the discoveries derived from research
     and experimentation performed at a relatively small
     cost on a pilot model are thereafter utilized in large-
     scale production to produce large-scale cost savings.

Gross consequently concluded that the value of the discoveries in

1986 from the nutrient tests were most applicable to a large

producer of jojoba.   He estimated that such a major jojoba
                                - 47 -

producer would save at least $380,000 from the nonpurchase of

nitrogen and phosphate as a result of the nutrient tests

conducted on Turtleback I, based on his calculated $380 savings

per acre times 1,000 acres.     The 1,000 acres represent his

estimate that a major jojoba producer such as HJI would have

1,000 acres or more of jojoba under cultivation.

       In preparing his report, Gross did not consider any of the

various contractual relationships that existed between JDP and

HJI.    He did not attribute any value in preparing his report to

the fact that a contractual joint venture opportunity existed

between HJI and JDP.

       2.   Paul J. Eberhardt

       Eberhardt testified for petitioners as to the nature of any

research or experimentation activities that HJI may have

conducted on Turtleback I during the R & D period.     As stated

earlier, Eberhardt is the head of IAS.     Eberhardt has a bachelor

of science degree in agricultural research, with a minor in

chemistry; a master of science degree in soils, with a minor in

statistics and plant physiology; and a doctor of philosophy

degree in agricultural chemistry and soils, with a minor in plant

physiology.     He is qualified as an expert in agronomics and

agricultural research and experimentation.     Eberhardt concluded

that the totality of research or experimentation activities

performed by HJI (including activities allegedly performed for

JDP-II) was research in the experimental or laboratory sense, and
                                 - 48 -

was activity to discover information that would eliminate

uncertainty regarding the commercialization of jojoba

plantations.   Eberhardt was not aware of the manner in which HJI

purportedly allocated different plots of jojoba plants to various

limited partnerships.      As far as he knew, IAS performed its

services for HJI.

     3.   Marvin T. Parr

     Marvin T. Parr (Parr) testified for respondent as to the

merits of any research or experimentation activities HJI may have

conducted for JDP.   Parr is an engineer employed by the Internal

Revenue Service in Montgomery, Alabama.      He visited the TJV

plantations and inspected the growing jojoba.      He is qualified to

testify as an expert in the instant cases as to the matters set

forth in his report.

     Parr concluded that the activities performed on Turtleback I

between January 1, 1982, and December 31, 1986, were

predominately aimed at the creation of an existing mature jojoba

farm and were not simply directed at acquiring information about

jojoba that was unknown at the time.      He also concluded that the

activities would not have eliminated any uncertainty regarding

the commercialization of jojoba because during that period jojoba

was being grown in other locations both without and within the

United States, and there were conflicting results about the

benefits of nutrients, especially with respect to nitrogen.       The

conflict in the results was that in some locations the jojoba had
                              - 49 -

responded favorably to nitrogen in the growth of the plants and,

in some instances, in yield of seeds, while in other locations

the growers had found no effect from applying nitrogen.

     Parr agreed, however, that some of the activities performed

on Turtleback I during the period in question would be research

activities.   He agreed that some of the fertilizer trials, such

as the original nutrient application program begun in the spring

of 1983, the revised nitrogen and phosphate application in mid-

1983, as well as the IAS nutrient study in 1985,17 were valid

research conducted under proper experimental procedures.

     According to Parr, before any experimental activities

commenced, a number of capital improvements had to be undertaken,

including the clearing and removal of brush, the leveling and

grading of the land surface, the installing of irrigation supply

piping to and on the tract, and the installing of a concrete-

lined irrigation ditch on the tract.   Other expenditures relating

to establishing the jojoba stand, such as planting the seed and

irrigating the field to cause the seed to germinate and the

plants to grow also were undertaken before any experimental

activities began.   Parr concluded that only a minor portion of

the expenditures on Turtleback I related to actual research.    The


17
     However, Parr would disregard as irrelevant to JDP all but a
small part of the research conducted by IAS because that research
was not identified in the R & D Agreement, was not performed
using jojoba plants from Turtleback I, or was not carried out on
Turtleback I.
                              - 50 -

bulk of the such activities was related to the creation and

development of a commercial jojoba plantation.

     Parr estimated that, without cost documentation, the

expenses actually related to research activities would be less

than 20 percent of the expenses that went into the acquisition

and creation of the jojoba plantation.   He would exclude from

research expenditures such as the land lease, planting,

irrigation, and other cultivation practices performed during the

5-year R & D period because those activities would be required

regardless of any research.   According to Parr, nutrient study

costs include only the actual application of the nutrients and

the recordkeeping of the period of time when those nutrient

applications were made and the dissemination of the results at

the end of that time.   They do not include the cost to create the

plantation, which includes among other things, the land, the

jojoba plants, and the irrigation system.

     Parr also concluded that any research activities would not

have been proprietary because the results already were known and

such knowledge was widely disseminated among the growers since,

at that time in the development of the jojoba industry, the

growers were not keeping secrets from one another and they were

freely sharing information, including knowledge of irrigation,

fertilizer, and pruning.
                               - 51 -

                               OPINION

A. The Criteria That Must Be Satisfied for Expense Treatment
Under Section 174

     Section 174(a)(1)18 states, as a general rule, that

"research or experimental expenditures which are paid or incurred

by * * * [a taxpayer] during the taxable year in connection with

his trade or business", may, at the election of the taxpayer, be

treated as expenses not chargeable to capital account.     The

expenditures so treated shall be allowed as a deduction.     Sec.

174(a)(1).    A taxpayer is entitled to a deduction for research

and experimental expenditures with respect to expenses paid or

incurred by the taxpayer directly as well as expenses paid or


18
     Sec. 174 provides in pertinent part:

SEC. 174.    RESEARCH AND EXPERIMENTAL EXPENDITURES.

     (a)  Treatment as Expenses.--
          (1) In general.--A taxpayer may treat research or
     experimental expenditures which are paid or incurred by him
     during the taxable year in connection with his trade or
     business as expenses which are not chargeable to capital
     account. The expenditures so treated shall be allowed as a
     deduction.

                *    *     *     *       *   *     *

     (c) Land and Other Property.--This section shall not apply
to any expenditure for the acquisition or improvement of land, or
for the acquisition or improvement of property to be used in
connection with the research or experimentation and of a
character which is subject to the allowance under section 167
(relating to allowance for depreciation, etc.) or section 611
(relating to allowance for depletion); but for purposes of this
section allowances under section 167, and allowances under
section 611, shall be considered as expenditures.
                              - 52 -

incurred on the taxpayer's behalf by another person or

organization.   Stankevich v. Commissioner, T.C. Memo. 1992-458;

sec. 1.174-2(a), Income Tax Regs.

     1.   The Expenditures Must Be for Research or Experimentation

     The term "research or experimental expenditures" as used in

section 174 means expenditures incurred in connection with the

taxpayer's trade or business which represent research and

development costs in the experimental or laboratory sense.    Sec.

1.174-2(a)(1), Income Tax Regs.   This regulation further

provides:

     The term [research or experimental expenditures]
     includes generally all such costs incident to the
     development of an experimental or pilot model, a plant
     process, a product, a formula, an invention or similar
     property, and the improvement of already existing
     property of the type mentioned. The term does not
     include expenditures such as those for the ordinary
     testing or inspection of materials or products for
     quality control or those for efficiency surveys,
     management studies, consumer surveys, advertising, or
     promotions. * * *

We have found the above definition "to be reasonable and

consistent with the intent of the statute to limit deductions to

those expenditures of an investigative nature expended in

developing the concept of a model or product."   Mayrath v.

Commissioner, 41 T.C. 582, 590 (1964) (emphasis in original),

affd. without discussion on this issue 357 F.2d 209 (5th Cir.

1966).

     In the instant cases, petitioners contend that HJI was

conducting valid research or experimentation on behalf of JDP
                              - 53 -

and, consequently, under section 174 JDP is entitled to deduct

the contract fee it paid HJI for such research or

experimentation.   Respondent contends, on the other hand, that

HJI used the funds JDP paid it to create a valuable capital asset

in the form of a jojoba plantation, including expenditures for

lease payments, site preparation such as ripping the land,

plowing, discing, and purchasing and installing an irrigation

system, and for planting the jojoba seeds.    Respondent argues

that such expenditures were made for the improvement of land to

which JDP could gain a property interest and, hence, under

section 174(c) the expenditures are not allowable.

     Petitioners counter, however, that JDP did not acquire an

ownership interest in the land, jojoba plants, or equipment used

on Turtleback I, or in any other property, as a result of the

disputed expenditures.   Petitioners assert that under section

1.174-2(a)(1), Income Tax Regs., any costs HJI incurred to build

the jojoba plantation on Turtleback I are deductible as costs

associated with building "a pilot model".    Petitioners assert

further that respondent's expert Parr acknowledged that HJI
                                - 54 -

performed at least some qualifying research on JDP's behalf that

was experimental in nature.19   Petitioners contend that, given

Parr's admission that the nutrient study had to occur on an

existing jojoba plantation, and that all of Turtleback I was used

for the qualifying research, under section 1.174-2(a)(1), Income

Tax Regs., the Commissioner must allow petitioners to deduct the

expenditures associated with the development of the purported

"model" jojoba plantation.   We do not agree.

     Any business arrangement may be scrutinized to ascertain

whether its form comports with economic reality.   Estate of

Helliwell v. Commissioner, 77 T.C. 964, 983 (1981); see Frank

Lyon Co. v. United States, 435 U.S. 561, 573 (1978); Commissioner

v. Court Holding Co., 324 U.S. 331 (1945); Gregory v. Helvering,


19
     On brief, respondent concedes that some of HJI's activities
connected with the jojoba plants, specifically relating to
nutrient studies, did constitute research and experimentation.
Respondent maintains, however, that less than 20 percent of HJI's
efforts on the property ostensibly allocated to JDP constituted
research and experimentation. Respondent does not concede that
the expenditures were incurred in connection with JDP's trade or
business. In light of respondent's concession, we make no
determination here as to whether HJI's activities on Turtleback I
rose to the level of research and experimentation as contemplated
under sec. 174. However, even if research and experimentation
did occur on Turtleback I, for the reasons discussed infra, we do
not agree that such activities were incurred on JDP's behalf. We
are not bound by conclusions or stipulations of law. E.g.,
Estate of Sanford v. Commissioner, 308 U.S. 39, 51 (1939); Swift
& Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917);
Saviano v. Commissioner, 765 F.2d 643, 645 (7th Cir. 1985) affg.
80 T.C. 955 (1983); Commissioner v. Ehrhart, 82 F.2d 338, 339
(5th Cir. 1936), revg. and remanding a Memorandum Opinion of the
Board of Tax Appeals; Yagoda v. Commissioner, 39 T.C. 170, 183
n.7 (1962), affd. 331 F.2d 485 (2d Cir. 1964).
                               - 55 -

293 U.S. 465 (1935).    The objective economic realities of a

transaction control the tax consequences of a given transaction

rather than the particular form the parties employed.    E.g.,

Frank Lyon Co. v. United States, supra at 572-573; Commissioner

v. Court Holding Co., supra at 334; Estate of Franklin v.

Commissioner, 64 T.C. 752 (1975), affd. on other grounds 544 F.2d

1045 (9th Cir. 1976).    As the Court of Appeals for the Seventh

Circuit has noted:

     The freedom to arrange one's affairs to minimize taxes
     does not include the right to engage in financial
     fantasies with the expectation that the Internal
     Revenue Service and the courts will play along. The
     Commissioner and the courts are empowered, and in fact
     duty-bound, to look beyond the contrived forms of
     transactions to their economic substance and to apply
     the tax laws accordingly. [Saviano v. Commissioner,
     765 F.2d 643, 654 (7th Cir. 1985), affg. 80 T.C. 955
     (1983).]

     After reviewing the record in the instant cases, we agree in

substance with respondent that JDP did not pay the $360,000

contract fee for research or experimentation to be conducted by

HJI on JDP's behalf.    Rather, for the reasons discussed below, we

conclude that the moneys JDP remitted to HJI for the putative

research or experimentation, in actuality, were paid for the

limited partners' right to participate in the jojoba farming

enterprise being operated by HJI in Hyder, Arizona.    We are

convinced that, from the inception of JDP, rather than being a

stand-alone operation, Turtleback I functioned and was viewed as

part of one integrated jojoba farming operation conducted by HJI.
                              - 56 -

In our view the R & D Agreement was designed and entered into

solely to provide a mechanism to disguise the capital

contributions of the limited partners as currently deductible

expenditures and thus reduce the cost of their participation in

the farming venture.

     As the transaction was structured, JDP could obtain no

economic benefit solely from the putative research or

experimentation apart from the potential tax benefits.    No

patents or inventions were expected to be developed.    In

addition, any "discoveries" obtained through HJI's efforts were

to be shared, without compensation, with other jojoba growers.

Consequently, JDP could receive no marketable asset from HJI's

putative research or experimentation activities.   Plainly, no

unrelated party would have paid HJI for a similar research and

development contract under circumstances like those presented in

this case.

     Petitioners, nonetheless, contend that the R & D Agreement

had independent value.   They assert that, as of December 31,

1981, the R & D Agreement had a fair market value of $382,000,

and that the value of the anticipated benefits of the research

was greater than the $360,000 JDP paid HJI under the R & D

Agreement.   In addition, they contend that the value of the cost

savings to the jojoba industry as a whole resulting from the

nutrient studies exceeded the amount JDP paid HJI under the R & D

Agreement.   Petitioners contend further that the parties to the
                              - 57 -

agreements believed that JDP would profit from the anticipated

increased yield of jojoba seed resulting from the research and

development project.   They also contend that JDP benefitted from

the R & D Agreement by obtaining the right to use any

"discoveries" resulting from the research or experimentation and

by the joint venture TJV using those "discoveries" after the

research and development period ended.    We disagree.

     We believe that JDP received no economic benefit from its

"right" to use "discoveries, technology, and other information"

resulting from the putative research or experimentation.    The

parties fully anticipated from the beginning that any such

results were to be used by HJI and disbursed widely and freely

throughout the jojoba industry.    We doubt that a disinterested

third party under similar circumstances would have been willing

to pay for the "right" to use any such "discoveries".

     Furthermore, we do not agree with petitioners that the R & D

Agreement had a fair market value of $382,000, as estimated by

petitioners' expert.   The nutrient studies HJI conducted on

Turtleback I by their very nature were applicable primarily, if

not exclusively, to that site.    Gross, however, made no

adjustment in his valuation of the R & D Agreement for its

limited applicability.

     In addition, Gross failed to take into consideration the

value of the additional rights arising from other agreements the

parties executed simultaneously with the R & D Agreement.    No one
                               - 58 -

denies that the only way anyone could possibly profit from the

putative research or experimentation was from harvesting the

seeds from the mature jojoba plants.    Indeed, Drs. Glassley and

Houser admitted in effect at the trial that they would never have

participated in JDP had they thought that farming activities

would not be conducted on Turtleback I.   Yet, no valuation was

made of the fair market value of any rights conveyed by the

option and joint venture agreement or the option and farm lease

agreement.

     We believe that Gross did not value the other rights

purportedly conveyed to JDP, in particular through the option and

joint venture agreement, even after we suggested at the trial

that he do so, because such valuations would have shown that the

purported value of the R & D Agreement was overstated.   In our

view, in light of the manner in which the arrangement was

structured, JDP could not have found a willing buyer for the R &

D Agreement at any price, let alone the $360,000 it agreed to pay

HJI, because JDP received no substantive ownership rights to the

results of the putative research or experimentation.

     Furthermore, we consider Gross' valuation of the purported

benefits of HJI's putative research and development as highly

exaggerated.   The only way he was able to arrive at his $380,000

cost-savings estimate was arbitrarily to apply the alleged per

acre savings to 1,000 acres.   As the transaction was structured

in 1981, however, JDP could only reap any profits from the 60
                              - 59 -

acres purportedly allocated to it.     Others had interests in the

large areas farmed by HJI in Hyder, so Gross' computation of the

valuation for JDP was simply contrary to fact.    Moreover, even

Eberhardt states that the results of the nutrient studies were

site specific.   Therefore, petitioners' argument that the jojoba

industry saved millions of dollars as a result of HJI's putative

research or experimentation is outlandish.

     In addition, we view with much skepticism testimony that the

parties to these agreements anticipated that JDP would recoup the

cost of the R & D contract fee from the increased production of

the jojoba plants on Turtleback I resulting from a successful

research program.   The record reveals that no one made any

projections before the agreements were executed, or afterward,

relating to the profit potential of a 60-acre jojoba plantation.

The profit projections in the offering were based on a jojoba

plantation's containing a low of 160 acres and a high of 464

acres.   The offering, furthermore, cautioned that JDP would face

higher risks should only the projected minimum 160 acres be

planted.   Yet, nowhere is any attempt made to show that the

results of operations on the 60 acres purportedly allocated to

JDP could support the anticipated 5-year research and

experimentation project to which the parties seemingly bound

themselves in the R & D Agreement.     Indeed, Gross admitted in his

report that "It is not customary to conduct expensive research

and experimentation on a pilot model, and then expect the pilot
                                - 60 -

operation to provide for recovery of such expense."     Gross,

furthermore, in effect acknowledged that the only effective use

of any discoveries obtained would have been on a large-scale

operation much greater than the 60 acres allocated to JDP.       Even

Whittaker testified that JDP, as a 60-acre partnership, was "not

a self-sustaining unit".     Petitioners, however, would have us

believe that they expected not only to recover the full cost of

the putative research or experimentation but also to earn a

substantial profit from operations on the 60-acre plantation.      In

our view, given the structure of the putative research and

development program, such an expectation would be pure fantasy.

The self-serving nature of the claims, together with the absence

of any evidence to support them, makes such testimony

implausible.

     Based on this record, we are convinced that the R & D

Agreement was without economic substance.     In our view, the R & D

Agreement was mere window dressing, devised to attract investors

for HJI's jojoba farming operation through the promise of a large

upfront deduction for what in actuality were capital

contributions.    We note that the parties paid scant attention to

the terms of the offering or the R & D Agreement.     For example,

the offering unequivocally states that, unless a minimum of 22

limited partnership units were sold by December 21, 1981, the

offering would be terminated and any subscription payments would

be returned.     Only six limited partners had subscribed by
                             - 61 -

December 21, 1981, yet the offering was not terminated.    Just

four more limited partnership units were sold between December 22

and December 28, 1981 (two full units and two one-half units),

for a total of nine full limited partnership units.   Nonetheless,

Berberich proceeded to close the offering and to execute the

limited partnership agreement on December 31, 1981.   The parties'

haste to close the offering and form the limited partnership by

yearend in contradiction to the express terms of the offering

circular leads us to conclude that the primary objective of the

transaction was to generate tax losses during the first year of

the partnership and thus reduce the cost of petitioners' capital

investment in a jojoba farming venture.

     As for the R & D Agreement, Whittaker admitted at the trial

that there was no way HJI could undertake the research or

experimentation outlined in that agreement for $360,000.    It is

quite clear from the record, moreover, that as of December 31,

1981, no specific research and development plan had been

formulated for the jojoba expected to be planted on Turtleback I.

In fact, the research or experimentation plan devised for

Turtleback I was not designed until 1983.   Moreover, no cost

estimates were made for the putative research or experimentation

at the time the documents were executed, nor did an accounting

system exist to allocate costs to JDP for at least the first 2

years of the purported research and development period.    We

conclude that the $360,000 contract fee was driven by the need to
                              - 62 -

provide the promised tax benefits for JDP's investors and that it

was not based on the value of any anticipated services to be

rendered by HJI.   Under such circumstances, we agree with

respondent that the R & D Agreement did not delineate the

agreement of the parties as to any research and development to be

conducted, and it had no substance.

     Petitioners contend, however, that the option and farm lease

agreement, which purportedly accorded JDP the right to operate

Turtleback I had HJI elected not to enter into a joint venture,

shows that JDP was independent from HJI and intended to use the

expected discoveries in a trade or business.   We do not agree.

     First, as we have stated earlier, we believe that from its

inception Turtleback I was not an independent jojoba plantation

but functioned as a part of HJI's jojoba farming enterprise.

Second, we are not convinced from this record that JDP ever had a

realistic prospect of carrying on a jojoba farming operation.

For example, JDP had no experience in farming jojoba.   As far as

we can tell from the record, Berberich was not involved directly

in the farming of jojoba on Turtleback I or anywhere.   He was a

lawyer, not a farmer, and all of his activities concerned

administering JDP or monitoring his own investments in the Hyder

Jojoba plantations.   JDP, moreover, had no employees and no

equipment, and it did not own the jojoba plants.   The record is

devoid of any evidence that JDP could have operated a successful
                              - 63 -

jojoba plantation on 60 acres, or that if it could, that JDP

would have had sufficient funds20 to continue such operations.

Nor is there any evidence that any limited partner could or would

have stepped in to farm Turtleback I.

     Although the parties took great care to clothe the

transaction in the garments of research or experimentation, when

we view the transaction closely, we are convinced that the

limited partners were not paying for research or experimentation

but for the right to share in the profits from HJI's jojoba

farming enterprise.   Under such circumstances, we conclude that

the disputed payments were in the nature of capital

contributions.   Section 174 does not permit a deduction for a

contribution to capital.   See Safstrom v. Commissioner, T.C.

20
     The record does not reveal JDP's financial status as of Jan.
1, 1987, the purported commencement date of the Turtleback Jojoba
Venture. However, we note that the limited partners were not
obligated to contribute any funds to JDP beyond their initial
partnership unit costs. Eight full and two one-half units in JDP
were sold, resulting in total capital contributions from the
limited partners of $450,000. According to the offering, the
general partner was to contribute $1,000 to JDP. Therefore, at
the most, JDP would have contributed capital of $451,000. JDP's
partnership return for 1981 reflected the R & D Agreement
contract fee of $360,000, syndication costs of $28,714,
organizational costs of $12,125, and legal and accounting fees of
$8,250, which totaled $408,289. As the transaction was
structured, JDP could earn no income from its inception on Dec.
31, 1981, through Dec. 31, 1986. Accordingly, JDP's operating
expenses for that period of time had to be paid from the
remaining $41,711 contributed capital (unless advanced by the
general partner). According to the offering, the general partner
was to be paid $10,000 for each of 1981 through 1987. It appears
unlikely, therefore, that as of Dec. 31, 1986, JDP would have had
the financial resources to take over operations on Turtleback I
if HJI had decided not to continue operations on that plot.
                               - 64 -

Memo. 1992-587, affd. without published opinion 42 F.3d 1401 (9th

Cir. 1994); Reinke v. Commissioner, T.C. Memo. 1981-120.

      In view of our conclusion that JDP did not pay HJI for

research or experimentation, we need not further address

petitioners' argument that during the alleged research and

development period Turtleback I was functioning solely as a pilot

or model, and therefore, the costs of its construction are

deductible under section 1.174-2(a)(1), Income Tax Regs.    We

note, however, that as the foregoing discussion suggests,

Turtleback I was not a model at all, and that, even if it had

been a model, it would not have been a model for operation by or

on behalf of JDP or its investors.

     2. The Expenditures Must Be Paid or Incurred on Behalf of
the Taxpayer

      In the instant cases, respondent has conceded that some of

HJI's activities on Turtleback I were research or experimentation

in the experimental or laboratory sense.   Petitioners contend

that respondent's concession is dispositive of the question of

the deductibility of the expenditures associated with the

development of Turtleback I.   We do not agree.   See supra note

19.   Such expenditures also must have been incurred on JDP's

behalf.

      Section 1.174-2(a)(2), Income Tax Regs., states that the

provisions of section 174(a)(1) "apply not only to costs paid or

incurred by the taxpayer for research or experimentation
                              - 65 -

undertaken directly by him but also to expenditures paid or

incurred for research or experimentation carried on in his behalf

by another person or organization".    On this record, we are not

persuaded that any research or experimentation performed on

Turtleback I was conducted on JDP's behalf.   Rather, we are

convinced that HJI operated an integrated jojoba farming

operation in Hyder, Arizona, and that any research or

experimentation conducted on Turtleback I was designed and

implemented to aid HJI's entire jojoba enterprise.

     As discussed above, there is no evidence that Turtleback I

functioned independently of HJI.   Moreover, it is clear that from

its inception JDP was viewed as a part of HJI's jojoba farming

enterprise.   Indeed, the interrelationship of HJI and JDP can be

seen in the following responses Whittaker made to questions posed

to her on direct examination (by which petitioners were trying to

establish that it was anticipated that the purported research and

development program would lead to valuable discoveries (emphasis

added)):

          Q. [Counsel] What would be the nature of the
     property interest, the intangible property interest
     that the discoveries might constitute?

          A. [Whittaker] I am sorry. By the end of the
     program or through the program, I think the nature of
     the property would be technological expertise,
     information or knowledge. The question of
     patentability and licensing I think is a twofold issue.
     One is, is it proprietary or specific enough to be of
     the nature of being patentable, but really, more
     importantly or specific to our purposes, I did not, we
     did not consider that it was to the benefit of our
                                - 66 -

     associated group to compartmentalize our information
     between one partnership and another, but rather it was
     to the benefit of all the parties, Jojoba Development
     parties, Hyder Jojoba, Inc., Hyder Jojoba Partners,
     which were the entities then in existence, to apply
     whatever knowledge we discovered to the benefit of all
     of the parties and move forward as a leading and
     profitable jojoba production company.

          Q: So specifically with respect to JDP, did you
     expect the discoveries would be beneficial to JDP?

            A:   Absolutely.

            Q:   And how would it be beneficial specifically to
     JDP?

          A: How would improving the - - it would be
     beneficial - -

          Q: In other words, how would the discoveries be
     beneficial to JDP?

          A: Assuming that we had discovered that a
     specific amount or regime of nutrient application could
     increase yield by a certain amount, that would not only
     benefit JDP specifically with regard to its operation
     under a joint venture, but would also benefit JDP,
     which is a 60-acre partnership and not a self-
     sustaining unit, but rather a group related to Hyder
     Jojoba, Inc. and all of its farm production, by
     contribution towards the development of an economically
     viable unit company/corporation that could produce
     jojoba effectively and profitably.

     The record shows that HJI did not serve solely as JDP's

agent.   JDP had no power to direct or control any aspect of the

research or experimentation process.     Berberich's activities were

solely ministerial.     There is no evidence that JDP, Berberich, or

any limited partner, was involved in, directed, or controlled any

phase of the alleged research or experimentation project.     Cf.

Everett v. Commissioner, T.C. Memo. 1990-65, (citing Diamond v.
                              - 67 -

Commissioner, 92 T.C. 423, 443 (1989), affd. 930 F.2d 372 (4th

Cir. 1991)).

     At the time the R & D Agreement was executed, the costs of

any research or experimentation to be conducted on Turtleback I

had not been estimated.   Under that agreement, HJI was to be

responsible for all of the costs of operating Turtleback I.     HJI

would make all of the decisions relating to its operations and

the putative research or experimentation, including deciding

exactly what research or experimentation, if any, would be done.

Although JDP purportedly paid a fixed contract fee for the

putative research projects delineated in the R & D Agreement, at

the time that agreement was executed neither party to the

agreement expected HJI to carry out the described projects.

     HJI, moreover, did not plan to make a profit from the

receipt of the R & D contract fee.     The fee was to provide HJI

with working capital and financial resources to develop the

jojoba plantation and conduct any research and development

projects.   Its profit would come only from operating the jojoba

plantation.

     HJI, furthermore, expected to, and did, use the results of

its putative research or experimentation activities on all of the

Hyder Jojoba plantations.   HJI shared in the potential risks of

failure and rewards of successful research or experimentation.

     Under such circumstances, we conclude that JDP did not pay

HJI $360,000 in consideration for obtaining ownership of the
                                - 68 -

discoveries resulting from the putative research or

experimentation.   Rather, we conclude that any research or

experimentation that HJI conducted on Turtleback I was for its

own benefit and on its own behalf.

     3. The Expenditures Must Be Paid or Incurred in Connection
with the Taxpayer's Trade or Business

     Petitioners contend that the putative research or

experimentation expenditures were paid or incurred in connection

with JDP's trade or business.    According to petitioners, the

research was done in contemplation that JDP and HJI would form a

joint venture with the express purpose of commercially and

profitably farming jojoba upon the expiration of the research

program if it was determined at that time that such venture would

be commercially feasible.   Furthermore, petitioners assert, the

joint venture subsequently was formed, and it operated a

commercial jojoba plantation on which the discoveries from the

research or experimentation were used.

     Respondent contends, on the other hand, that JDP was only a

passive investor that never engaged in or planned to engage in

its own separate trade or business.      Respondent asserts that the

passive nature of the investment is reflected in JDP's

willingness to enter into the R & D Agreement without retaining

any proprietary rights to any technology developed and where any

discoveries obtained from the field testing would be available to

anyone in the jojoba industry.    Respondent contends that JDP's
                              - 69 -

actions following the execution of the R & D Agreement with HJI

were ministerial at most and that HJI enjoyed complete discretion

and control over any research or experimentation as well as the

farming activities that were pursued after January 1, 1987.

     Respondent contends further that the second phase of JDP,

following the expiration of the R & D period, was highly

speculative since it was conditioned on HJI's exercising an

option to exploit the jojoba plantation that had been developed.

If HJI refused to exercise the option, however, JDP could only

realize profit from the arrangement by exercising its option to

lease the property from Whittaker Jojoba, in which JDP's general

partner held an interest.   Respondent argues that these highly

speculative and conditional arrangements could not rise to the

status of a business, realized or anticipated, on December 31,

1981, when the research and development fee was deducted.

Respondent asserts that JDP was only a vehicle "for the injecting

of risk capital".   Green v. Commissioner, 83 T.C. 667, 687

(1984); see also Levin v. Commissioner, 87 T.C. 698, 725 (1986),

affd. 832 F.2d 403 (7th Cir. 1987).

     In Snow v. Commissioner, 416 U.S. 500 (1974), the Supreme

Court established that deductions under section 174 could be

claimed in connection with a trade or business even though the

taxpayer was not currently producing or selling any product.      In

following the Snow case, however, this Court has held that to be

entitled to a deduction the taxpayer must be engaged in a trade
                              - 70 -

or business at some time and the activities must be sufficiently

substantial and regular to constitute a trade or business.      Green

v. Commissioner, supra at 687-689.     Where a partnership is

claiming deductions under section 174, the controlling inquiry is

whether there is a realistic prospect that the technology to be

developed will be exploited in a trade or business of the entity

in question.   See Diamond v. Commissioner, 92 T.C. at 443; see

also Kantor v. Commissioner, 998 F.2d 1514 (9th Cir. 1993), affg.

on this issue T.C. Memo. 1990-380; Spellman v. Commissioner, 845

F.2d 148, 149 (7th Cir. 1988), affg. T.C. Memo. 1986-403; Harris

v. Commissioner, T.C. Memo. 1990-80, supplemented by 99 T.C. 121

(1992), affd. 16 F.3d 75 (5th Cir. 1994).    Mere legal entitlement

to enter into a trade or business does not satisfy this test.

Instead, "The legal entitlement must be backed by a probability

of the firm's going into business."     Levin v. Commissioner, 832

F.2d at 407; Kantor v. Commissioner, supra at 1520; LDL Research

& Dev. II, Ltd. v. Commissioner, T.C. Memo. 1995-172; Stankevich

v. Commissioner, T.C. Memo. 1992-458.    But cf. Scoggins v.

Commissioner, 46 F.3d 950 (9th Cir. 1995) revg. T.C. Memo. 1991-

263, (where the Court of Appeals for the Ninth Circuit concluded

that there was a realistic prospect that the partnership involved

in that case would be engaged in a trade or business).    In

Scoggins, the individual taxpayers had directed the research

themselves, had experience in marketing, and had the ability to

provide the partnership with sufficient capital to manufacture
                              - 71 -

and market the equipment in question if the corporation did not

do so.   The circumstances in Scoggins are wholly different from

those presented here.   See LDL Research & Dev. II, Ltd. v.

Commissioner, supra, also distinguishing the Scoggins case.

     A facts and circumstances test has been employed by this

Court in determining whether there is a realistic prospect that a

partnership may enter into a trade or business with respect to

technology that is to be developed.    We have considered such

factors as the terms of the parties' contractual arrangements,

the intentions of the parties involved in the arrangement, the

amount of capitalization retained by the partnership during the

research and development contract period, the exercise of control

by the partnership over the person or organization doing the

research, the business activities of the partnership, the

capacity and incentive, if any, of the partnership to use the

products in its own trade or business, and the experience of the

partners.   E.g., Diamond v. Commissioner, supra at 438-440; Levin

v. Commissioner, 87 T.C. at 726-728; Mach-Tech, Ltd. Partnership

v. Commissioner, T.C. Memo. 1994-225, affd. 59 F.3d 1241 (5th

Cir. 1995); Stankevich v. Commissioner, supra; Double Bar Chain

Co. v. Commissioner, T.C. Memo. 1991-572.

     The grant of an exclusive license to exploit technology

prior to commencement of research and development may preclude a

licensor from engaging in a trade or business with respect to the

technology.   See Levin v. Commissioner, 87 T.C. at 726-727; Green
                              - 72 -

v. Commissioner, supra.   In addition, this Court has also

disallowed deductions claimed for research and experimental

expenditures even though the licenses had not officially been

entered into upon execution of the research and development

agreements.   See Stauber v. Commissioner, T.C. Memo. 1992-128;

Double Bar Chain Co. v. Commissioner, supra.    In Stauber, we

found that the partnership never intended to enter into a trade

or business with respect to the technology, and that there was a

pre-existing understanding regarding a future license of the

technology.   In Double Bar Chain Co. v. Commissioner, supra, we

held that even though there was no written license agreement, the

partnership never intended to enter the trade or business of

manufacturing and marketing the technology.    The relevant factors

in this determination included the limited capital retained in

the partnership, the private offering memorandum stating that

none of the essential activities relating to the technology would

be conducted by the partnership, the lack of control over the

research activities, and the lack of experience of the investors.

     In Stankevich v. Commissioner, supra, we looked to the

passive nature and limited activity of the partnerships, as well

as their lack of control over all aspects of the investment, in

holding that the general partner never intended that the

partnerships would enter into a trade or business.   We also held

that the contractual arrangements between the parties made the

prospects unrealistic that the partnerships would ever be capable
                                - 73 -

of entering into a trade or business with respect to any

technology that might be developed.      Consequently, we held that

"Everything that * * * [the taxpayers] did was wholly consistent

with investor activity, not the activity of a person engaged in

an active trade or business."     Id.

     In determining whether research and development expenditures

were incurred in the taxpayer's trade or business, this Court has

considered a two-step inquiry:    (1) Whether the taxpayer's

activities in connection with the venture were sufficiently

substantial and regular to constitute a trade or business and (2)

whether the taxpayer had the requisite profit objective in

undertaking the activity.   See Green v. Commissioner, 83 T.C.

667, 687 (1984); Stankevich v. Commissioner, supra.      Petitioners

contend that such requirements have been satisfied in the present

cases because TJV's primary motive in farming jojoba was to

realize profit, and its farming operations were continual and

regular.

     Petitioners contend that the present cases are

distinguishable from cases such as Green v. Commissioner, supra,

Levin v. Commissioner, supra, and Stankevich v. Commissioner,

supra, because JDP actually formed a joint venture with HJI in

1987 that commercially farmed jojoba.     Petitioners argue that the

formation and operation of that joint venture is determinative of

the trade or business question.    We do not agree.   The fact that

some enterprise, be it HJI or TJV, was conducting commercial
                              - 74 -

farming on Turtleback I is not determinative.    As we have stated

previously, "the mere presence of a valid business enterprise at

some levels of a transaction does not automatically entitle

passive investors distant from day-to-day operations of the

enterprise to the associated tax benefits."     Beck v.

Commissioner, 85 T.C. 557, 580 (1985).   Rather, to resolve the

trade or business question in the instant cases we must focus on

JDP, not TJV, as petitioners would have us do.    For the reasons

set forth above, we conclude that JDP did not intend to engage,

nor did it engage, in its own trade or business.

     As stated previously, we have concluded that Turtleback I

was not operated as an independent jojoba plantation.21    JDP

functioned from the beginning as a part of HJI's farming

enterprise.   JDP's relationship with HJI did not change as of

January 1, 1987, when purportedly the research and development

period ended and the putative joint venture operation commenced.

HJI continued to have sole responsibility and control over the

jojoba farming operations.   JDP moreover was not called upon to

provide any additional contributions to fund the operations of

the joint venture.   The fact that JDP would begin to share in any

profits after formation of the joint venture is not determinative

since no profits could have been expected during the putative

21
     We may take into account a taxpayer's actions in years
subsequent to the years in issue in evaluating the taxpayer's
prospects during the years in issue. Levin v. Commissioner, 832
F.2d, 403, 406 n.3 (7th Cir. 1987), affg. 87 T.C. 698 (1986).
                                - 75 -

research and development period because that period coincided

with the maturation period of the jojoba plants.   The only

ostensible difference in the relationship between JDP and HJI is

that allegedly after 1986, as general partners, both JDP and HJI

would be jointly liable for any debts and losses of a joint

venture.   In the present cases, however, we find that difference

to be without distinction.   We are guided by the maxim that "the

relevant inquiry is the actual manner, not the form, in which the

parties intended to structure their relationship."   Slappey Drive

Indus. Park v. United States, 561 F.2d 572, 583 (5th Cir. 1977),

affg. Cairo Developers, Inc. v. United States, 381 F. Supp. 431

(M.D. Ga. 1974); see also Saviano v. Commissioner, 765 F.2d 643,

650 (7th Cir. 1985), affg. 80 T.C. 955 (1983).   JDP was a limited

partnership.   Consequently, the potential liability of the

individual partners did not change as a result of the formation

of Turtleback Jojoba Venture.

      The mere presence of a profit motive, moreover, is not

determinative of whether the section 174 deduction will be

allowed.   What is significant in the instant cases is that JDP

never actually managed or controlled the use or marketing of the

results of the research or experimentation.   See Harris v.

Commissioner, 16 F.3d 75 (5th Cir. 1994), affg. T.C. Memo. 1990-

80.

      JDP did not have a realistic prospect of carrying on its own

jojoba farming business.   Even though JDP had an option to farm
                                - 76 -

Turtleback I at the end of the R & D period, it would have the

opportunity to exercise that option only if HJI decided that it

would be uneconomical to enter into the Turtleback Jojoba Venture

with JDP.   As we stated previously, there is no evidence that JDP

would have had the technical expertise or financial resources to

operate a jojoba plantation had HJI not exercised its option to

enter into Turtleback Jojoba Venture.     There is no evidence that

Berberich or any limited partner could or would have stepped in

to operate a commercial jojoba plantation on Turtleback I

commencing in 1987.    Neither JDP nor any of its partners had any

experience in farming jojoba.    JDP, moreover, had no employees,

equipment, or any other physical assets, and apparently would not

have had sufficient funds to acquire the necessary assets to

operate a jojoba plantation after the 5 to 6 years needed for the

jojoba plants to become productive.      JDP, moreover, was allocated

only 60 acres on which to operate such plantation, which, from

the evidence in this case, was insufficient acreage on which to

conduct such an operation.

     Under such circumstances, we conclude that at the time the R

& D Agreement was executed, JDP did not intend to engage in a

business of its own.   Because of this conclusion, we do not

address alternative arguments raised by the parties in support of

their various positions.

     Accordingly, we hold that petitioners are not entitled to

deduct losses attributable to JDP's deduction for research or
                                 - 77 -

experimentation expenditures under section 174.     Respondent is

sustained on this issue.

B.   Negligence

      Respondent determined that petitioners are liable for

additions to tax for negligence or intentional disregard of rules

and regulations under section 6653(a)(1) and (2).     Section

6653(a)(1) provides for an addition to tax in an amount equal to

5 percent of the underpayment if any part of the underpayment is

due to negligence or intentional disregard of rules and

regulations.      Section 6653(a)(2) provides for an addition to tax

in an amount equal to 50 percent of the interest payable under

section 6601 with respect to that portion of an underpayment

attributable to negligence or intentional disregard of rules and

regulations.

      Negligence is defined as the failure to exercise the due

care of a reasonable and ordinarily prudent person under like

circumstances.     E.g., Allen v. Commissioner, 925 F.2d 348, 353

(9th Cir. 1991), affg. 92 T.C. 1 (1989); Sandvall v.

Commissioner, 898 F.2d 455, 458 (5th Cir. 1990), affg. T.C. Memo.

1989-189 and T.C. Memo. 1989-56; Forseth v. Commissioner, 845

F.2d 746, 749 (7th Cir. 1988), affg. 85 T.C. 127 (1985); Neely v.

Commissioner, 85 T.C. 934, 947 (1985).      The question is whether a

particular taxpayer's actions in connection with the transaction

were reasonable in light of his experience and the nature of the

investment or business.     See Henry Schwartz Corp. v.
                              - 78 -

Commissioner, 60 T.C. 728, 740 (1973).      A taxpayer may not be

negligent but still violate section 6653(a)(1) and (2) by

intentionally disregarding respondent's rules and regulations.

Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir. 1967),

affg. in part and remanding in part 43 T.C. 168 (1964) and T.C.

Memo. 1964-299.   Petitioners have the burden of proving that the

underpayment of tax was not due to their negligence or

intentional disregard of rules and regulations.     Rule 142;

Sandvall v. Commissioner, supra at 459; Forseth v. Commissioner,

supra; Luman v. Commissioner, 79 T.C. 846, 860-861 (1982).

     1.   Petitioners Glassley and Houser

     Petitioners Glassley and Houser contend that the addition to

tax for negligence under section 6653(a)(1) and (2) is not

applicable to them because they relied in good faith on the

advice of competent professionals that the tax treatment for the

putative research and development expenditures was proper.

Respondent asserts, on the other hand, that petitioners have not

demonstrated that they were reasonable in relying upon their

accountants.   She contends further that petitioners have not

shown what advice, if any, they received from their accountants

or that the accountants had sufficient knowledge of the facts to

render a competent opinion.   We agree with respondent.

     Reliance on the advice of competent professionals, even if

erroneous, may form the basis for a successful defense against

the imposition of an addition to tax for negligence.     E.g., Weis
                              - 79 -

v. Commissioner, 94 T.C. 473, 487 (1990); Ewing v. Commissioner,

91 T.C. 396, 423-424 (1988), affd. without published opinion 940

F.2d 1534 (9th Cir. 1991); Freytag v. Commissioner, 89 T.C. 849,

888 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd. 501 U.S.

868 (1991); Jackson v. Commissioner, 86 T.C. 492, 539 (1986),

affd. 864 F.2d 1521 (10th Cir. 1989); Brown v. Commissioner, 47

T.C. 399, 410 (1967), affd. 398 F.2d. 832 (6th Cir. 1968).

However, reliance on professional advice, standing alone, is not

an absolute defense to negligence, but only one factor to be

considered.   Freytag v. Commissioner, supra; Reimann v.

Commissioner, T.C. Memo. 1996-84; Kaplan v. Commissioner, T.C.

Memo. 1994-81.   A taxpayer's reliance must be reasonable, in good

faith, and based on full disclosure.   Ewing v. Commissioner,

supra; Pritchett v. Commissioner, 63 T.C. 149, 174-175 (1974).

Further, reliance on a tax professional will not absolve

taxpayers where they are aware that the "facts" upon which they

predicate their deductions are not the facts of the transaction

in issue.   McCrary v. Commissioner, 92 T.C. 827, 847 (1989).

     Dr. Glassley testified that he relied on his accountant in

claiming the disputed expenditures while Dr. Houser testified

that he relied on his accountant and his brother, an attorney.

To show good faith reliance, petitioners Glassley and Houser must

establish that these individuals were competent to render the

advice, that petitioners supplied them with all necessary

information, and that the incorrect return was a result of the
                                - 80 -

professional's mistakes.    Weis v. Commissioner, supra; Conlorez

Corp. v. Commissioner, 51 T.C. 467, 474 (1968).

     Neither petitioners Glassley nor Houser have established

that their accountants (or brother) had specialized knowledge of

the jojoba industry or of agricultural research.     Nor have

petitioners Glassley or Houser established the extent or nature

of these individuals' tax expertise.     None of these alleged

professionals, moreover, made an independent investigation of the

JDP partnership or hired anyone to make such an investigation.

In evaluating the transaction, petitioners Glassley's accountant

and petitioners Houser's accountant and Dr. Houser's brother

relied solely on the offering circular.     See Vojticek v.

Commissioner, T.C. Memo. 1995-444, to the effect that advice from

persons with an interest in the transaction "is better classified

as sales promotion".

     Furthermore, there is no reliable evidence in the record

suggesting the exact nature of the advice, if any, that was

given.   Neither of the accountants nor Dr. Houser's brother

testified.   We cannot assume that their testimony would have been

favorable to petitioners.    The normal inference is that it would

have been unfavorable.     Pollack v. Commissioner, 47 T.C. 92, 108

(1966), affd. 392 F.2d 409 (5th Cir. 1968); see also Tokarski v.

Commissioner, 87 T.C. 74, 77 (1986); Bresler v. Commissioner, 65

T.C. 182, 188 (1975); Wichita Terminal Elevator Co. v.
                               - 81 -

Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th

Cir. 1947).

     On this record, we conclude that petitioners Glassley and

Houser did not act in good faith reliance on professional advice.

In each case, the record shows that they acted on their

fascination with the idea of participating in a jojoba farming

venture and their satisfaction with tax benefits of expensing

their investments, which were clear to them from the promoter's

presentation.   They passed the offering circular by their

accountants for a "glance", and Dr. Houser spoke with his

brother, an attorney, though apparently not a person

knowledgeable about tax matters or agriculture.   The facts here

do not establish consultation with an expert.    Cf. Durrett v.

Commissioner, 71 F.3d 515 (5th Cir. 1996), affg. in part, revg.

in part T.C. Memo. 1994-179.   Petitioners Glassley and Houser

have not established that their purported reliance on the advice

of their accountants (and brother) actually occurred or was

reasonable, in good faith, and based on full disclosure.     Hence,

such alleged reliance is not sufficient to shield them from

liability for the negligence additions to tax.

     An addition to tax for negligence is correctly assessed in

cases where deductions claimed on returns are not supported by

the facts.    Sandvall v. Commissioner, supra; Marcello v.

Commissioner, supra. Petitioners claimed deductions for purported

research and experimental expenditures that we have found to have
                               - 82 -

been in actuality contributions to capital.   Based on the record,

we conclude that petitioners Glassley and Houser knew, or should

have known, that JDP's payments to HJI were not made for the

purposes stated in the R & D Agreement.   We conclude further that

they nonetheless deliberately disregarded respondent's rules and

regulations in claiming as research or experimentation

expenditures on their tax returns for the years in issue the bulk

of their capital contributions for the right to participate in

HJI's jojoba farming enterprise.

     Accordingly, we hold that petitioners Glassley and Houser

are liable for the negligence additions to tax under the

provisions of section 6653(a)(1) and (2).   Respondent is

sustained on this issue.

     2.   Dr. Mahoney

     Dr. Mahoney did not testify at trial and he has presented no

evidence on this issue.    Consequently, Dr. Mahoney has failed to

carry his burden of showing that, in claiming the disputed

deductions, he was not negligent or did not intentionally

disregard respondent's rules and regulations.   Accordingly, he

also is liable for the negligence additions to tax under the

provisions of section 6653(a)(1) and (2).   Respondent is

sustained on this issue.

C.   Increased Interest

     Respondent determined in the notices of deficiency that the

increased interest under section 6621(c) applied to petitioners
                               - 83 -

Glassley and petitioner Mahoney.    Respondent also asserted by

amended answer that the increased interest under section 6621(c)

applied to petitioners Houser.    Respondent has the burden of

proof with respect to the increased interest asserted in the

amendment to answer.    Rule 142(a); Zirker v. Commissioner, 87

T.C. 970, 981 (1986).

     The increased rate of interest under section 6621(c) is 120

percent of the statutory rate imposed on underpayments under

section 6601 if the underpayment exceeds $1,000 and is

attributable to a tax-motivated transaction (as defined in

section 6621(c)(3)).    The increased interest is effective only

with respect to interest accruing after December 31, 1984,

notwithstanding that the transaction was entered into before that

date.    Solowiejczyk v. Commissioner, 85 T.C. 552 (1985), affd.

per curiam without published opinion 795 F.2d 1005 (2d Cir.

1986).

     Respondent contends that the increased rate of interest

under section 6621(c) applies because the research and

development expense deductions that petitioners claimed resulted

in a "substantial underpayment" attributable to a tax-motivated

transaction.

     Section 6621(c)(3)(A) enumerates types of transactions that

are considered "tax-motivated transactions".    Furthermore,

section 6621(c)(3)(B) gives the Secretary of the Treasury

authority, by regulation, to add to the categories of
                                - 84 -

transactions that will be treated as tax-motivated transactions.

The definition of a tax-motivated transaction includes "any use

of an accounting method specified in regulations prescribed by

the Secretary as a use which may result in a substantial

distortion of income for any period."     Sec. 6621(c)(3)(A)(iv).

In Bailey v. Commissioner, 90 T.C. 558, 628 (1988), affd. in part

and remanded on another issue 912 F.2d 44 (2d Cir. 1990), the

Court determined that the deduction from income of management

fees that should have been capitalized and amortized was a

distortion of income under section 6621(c)(3)(A)(iv); see also

Lieber v. Commissioner, T.C. Memo. 1993-391; Upham v.

Commissioner, T.C. Memo. 1989-253, affd. 923 F.2d 1328 (8th Cir.

1991); sec. 301.6621-2T, Temporary Admin. & Proced. Regs., 49

Fed. Reg. 50391, 50392 (Dec. 28, 1984), 1985-1 C.B. 368.22

22
     Sec. 301.6621-2T, Temporary Proced. & Admin. Regs., in
pertinent part provides as follows in question and answer format:

          Q-3: What accounting method may result in a
     substantial distortion of income for any period under
     [sec. 6621(c)(3)(A)(iv)]?
          A-3: A deduction or credit disallowed, or income
     included, in any of the circumstances listed below
     shall be treated as attributable to the use of an
     accounting method that may result in a substantial
     distortion of income and shall thus be a tax motivated
     transaction that results in a tax motivated
     underpayment:

             *    *    *    *      *     *    *

          (9) In the case of a taxpayer who computes
     taxable income using the cash receipts and
     disbursements method of accounting, any deduction
                                                   (continued...)
                                 - 85 -

        JDP (and thus petitioners) claimed deductions for research

and development expenditures that we found were in actuality

nondeductible contributions to capital.     Such deductions caused a

material distortion of their income.      See Lieber v. Commissioner,

supra; Upham v. Commissioner, supra.      The underpayment resulting

from such disallowed deductions is therefore attributable to a

tax-motivated transaction.     Accordingly, petitioners are liable

for the additional interest determined in the notices of

deficiency or asserted by amendment to answer.     Respondent is

sustained on this issue.

        To reflect the foregoing,


                                Decisions will be entered for

                            respondent in docket Nos. 13431-89

                            and 24177-89.

                                Decision will be entered under

                            Rule 155 in docket No. 19140-89.




22
     (...continued)
         disallowed for any period because (i) the expenditure
         resulting in the deduction was a deposit rather than a
         payment, (ii) the expenditure was prepaid for tax
         avoidance purposes and not for a business purpose, or
         (iii) the deduction resulted in a material distortion
         of income (see, e.g., Rev. Rul. 79-229, 1979-2 C.B.
         210).
