Paul and Pauline D. Kessler - Page 9

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                    (a) The Incidental Exception                                      
               Although not clearly articulated in their brief, petitioners           
          apparently argue that their rental activity is incidental to                
          their nonrental activities, excepting them from the presumption             
          of passive characterization.  See sec. 1.469-1T(e)(3)(ii)(D),               
          Temporary Income Tax Regs., supra.  As it relates to this case,             
          the regulations “test” provides in pertinent part:                          
                    (c)  Property used in a trade or business.  The                   
               rental of property during a taxable year shall be                      
               treated as incidental to a trade or business activity                  
               * * * if and only if--                                                 
                         (1) The taxpayer owns an interest in such                    
                    trade or business activity during the taxable                     
                    year;                                                             
                         (2) The property was predominantly used in                   
                    such trade or business activity during the taxable                
                    year or during at least two or the five taxable                   
                    years that immediately precede the taxable year;                  
                    and                                                               
                         (3) The gross rental income from such                        
                    property for the taxable year is less than two                    
                    percent of the lesser of--                                        
                              (i) The unadjusted basis of such                        
                         property; and                                                
                              (ii) The fair market value of such                      
                         property.  [Sec. 1.469-1T(e)(3)(vi)(C),                      
                         Temporary Income Tax Regs., 53 Fed. Reg. 5703                
                         (Feb. 25, 1988); emphasis added.]                            
          Petitioners presented no evidence that the amount of the rental             
          income earned for the years at issue met the 2-percent test.  Cf.           
          Tarakci v. Commisioner, T.C. Memo. 2000-358.  The record does not           
          establish the fair market value or unadjusted basis of the                  





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