- 7 - any activity where payments are principally for the use of tangible property. See also sec. 1.469-1T(e)(3)(i), Temporary Income Tax Regs., 53 Fed. Reg. 5702 (Feb. 25, 1988). However, an activity involving the use of tangible property is not a rental activity for a taxable year, inter alia, if for such taxable year the average period of customer use for such property is seven days or less. Sec. 1.469-1T(e)(3)(i) and (ii)(A), Temporary Income Tax Regs., supra. In this case, the parties agree that the average period of customer use of petitioners' condominium unit at Wisp was less than 7 days during each of the years at issue. The parties thus agree that petitioners' condominium hotel activity is not a rental activity as defined in section 469(j)(8) and the regulations thereunder and, thus, is not considered a passive activity under section 469(c)(2). Nevertheless, petitioners' activity at Wisp will constitute a passive activity under section 469(c)(1) unless they establish that they materially participated in the activity during the taxable years in issue. In Mordkin v. Commissioner, supra, we discussed the Code and regulations relating to material participation as follows: Section 469(h)(1) provides that generally an individual shall be treated as materially participating in an activity only if he or she is involved in the operations of the activity on a basis that is regular, continuous, and substantial. Congress expressly authorized the Secretary of the Treasury (Secretary) to prescribe such regulations as may be necessary or appropriate to carry out the provisions of section 469, including regulations that specify what constitutes material participation. Sec. 469(1)(i). Both temporary and final regulations relating to the meaning of the terms "participation" and "material participation" have been promulgated under section 469. With respect to the term "participation", final regulations issued under section 469 provide that generally "any work done by an individual (withoutPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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