Arnold P. Mordkin and Cindy Mordkin - Page 45

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               In advancing their claim that petitioner materially par-               
          ticipated in his rental activity at Crestwood under the facts and           
          circumstances test, petitioners disregard the following limita-             
          tions with respect to the applicability of that test that are set           
          forth in section 1.469-5T(b)(2)(ii) and (iii), Temporary Income             
          Tax Regs., supra:                                                           
                    (ii)   Certain management activities.  An indi-                   
               vidual's services performed in the management of an ac-                
               tivity shall not be taken into account in determining                  
               whether such individual is treated as materially par-                  
               ticipating in such activity for the taxable year under                 
               paragraph (a)(7) of this section unless, for such                      
               taxable year--                                                         
                         (A)  No person (other than such individual)                  
               who performs services in connection with the management                
               of the activity receives compensation described in                     
               section 911(d)(2)(A) in consideration for such ser-                    
               vices; and                                                             
                         (B)  No individual performs services in                      
               connection with the management of the activity that                    
               exceed (by hours) the amount of such services performed                
               by such individual.                                                    
                    (iii)  Participation less than 100 hours.  If an                  
               individual participates in an activity for 100 hours or                
               less during the taxable year, such individual shall not                
               be treated as materially participating in such activity                
               for the taxable year under paragraph (a)(7) of this                    
               section.                                                               
               Respondent contends that the foregoing limitations preclude            
          petitioner from being treated under the facts and circumstances             
          test as having materially participated for each of the years at             
          issue in his rental activity at Crestwood.                                  
               We have found as a fact that during each of the years at               
          issue petitioner spent a total of at least 75, but no more than             




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