- 48 -
pursuant to section 1.469-5T(b)(2)(ii)(B), Temporary Income Tax
Regs., supra, the performance of management services by petition-
er cannot be taken into account for the purpose of determining
whether petitioner is to be treated under the facts and circum-
stances test as having materially participated in that activity
for each of those years.
On the record before us, we find that petitioners have
failed to establish that petitioner is to be treated as having
25(...continued)
two condominium units. Consistently, we also assumed arguendo
that all the work done by Mr. Dempsey, Ms. Gahm, and others in
connection with the management of the operations of Crestwood
Association was done by them in connection with the rental of
petitioner's condominium units. In this regard, we note that, as
was true of the record relating to the time spent by petitioner
in connection with the Crestwood Association operations, we have
no way of determining from the record before us how much of the
time spent during the years at issue by Mr. Dempsey, Ms. Gahm,
and others in performing management services related solely to
petitioner's rental of his two condominium units during those
years. We also note that, given the responsibilities and func-
tions performed by petitioner as a board member and an officer of
Crestwood Association and by Mr. Dempsey, Ms. Gahm, and others in
performing management services for the Crestwood Association
operations, we believe it reasonable to assume on the record
before us that the portion of the total time spent by petitioner
in performing management services relating to the rental of his
two condominium units would bear the same ratio to the total time
he spent in all Crestwood Association operations as the portion
of the total time spent by Mr. Dempsey, Ms. Gahm, and others
relating to the management of the rental of petitioner's condo-
minium units bears to the total time they spent on all Crestwood
Association operations. Consequently, we believe that even if
the record enabled us to make findings as to the amount and
extent of time spent by petitioner and by Mr. Dempsey, Ms. Gahm,
and others on the management of petitioner's two condominium
units, petitioner's time so spent would not exceed their time so
spent.
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