- 32 -
Supreme Court has acknowledged that "The choice among reasonable
interpretations is for the Commissioner, not the courts."
National Muffler Dealers Association, Inc. v. United States,
supra at 488.
If section 1.469-5T(a)(1), Temporary Income Tax Regs.,
supra, that petitioners challenge were promulgated pursuant to
the specific legislative authority of section 469(l)(1), it would
be considered a legislative regulation. See Dresser Indus., Inc.
v. Commissioner, supra at 1137. A legislative regulation must be
upheld unless it is "arbitrary, capricious, or manifestly con-
trary to the underlying statute." Id.
Petitioners contend that the regulation they challenge
should be classified as an interpretative regulation. Although
section 469(l)(1) delegates legislative authority to the Secre-
tary to prescribe regulations that specify what constitutes
material participation, in arguing the validity of section 1.469-
5T(a)(1), supra, respondent applies the standard used in judging
the validity of an interpretative regulation. We need not
resolve the question whether section 1.469-5T(a)(1), Temporary
Income Tax Regs., supra, is an interpretative or a legislative
regulation. This is because assuming arguendo, as petitioners
contend, and respondent does not dispute, that that regulation
were an interpretative, and not a legislative, regulation, we
would nonetheless uphold its validity because we conclude that
section 1.469-5T(a)(1), Temporary Income Tax Regs., supra,
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