Kai H. and Susanna Lee - Page 4

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          activities as including rental activities.  The notice of                   
          deficiency that the Commissioner sent the Lees disallowed their             
          losses from Lee Brothers Investments and their other real estate            
          ventures because the Commissioner concluded that they were all              
          “rental real estate activities,” and so per se passive.  The                
          Commissioner also reduced the size of the depreciation expenses             
          that the Lees had taken on two of their properties, because they            
          had used a 10-year useful life rather than the 27.5-year life               
          clearly required by law.  The Lees had no good reason for having            
          done this, and conceded the issue before trial.                             
               The trial focused on whether the brothers’ work on their               
          rental real estate qualified them for an exception to the Code’s            
          characterization of rental activities as passive.  The exception            
          that they aimed for is section 469(c)(7)(B), and it applies if:             
                         (i) more than one-half of the personal                       
                    services performed in trades or businesses by                     
                    the taxpayer during such taxable year are                         
                    performed in real property trades or                              
                    businesses in which the taxpayer materially                       
                    participates, and                                                 
                         (ii) such taxpayer performs more than                        
                    750 hours of services during the taxable year                     
                    in real property trades or businesses in                          
                    which the taxpayer materially participates.                       
               In the case of a joint return, the requirements of the                 
               preceding sentence are satisfied if and only if either                 
               spouse separately satisfies such requirements. * * *                   
               There are a few elements to this exception about which there           
          is no dispute.  First, for both years and in both cases, this               






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