Barry H. and Marilyn S. Scheiner - Page 11

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                A preliminary question we must decide is whether the work                    
          done by petitioner in her capacity as a board member and officer                   
          constitutes participation in the Wisp condominium hotel activity                   
          or, alternatively, constitutes investor participation within the                   
          meaning of section 1.469-5T(f)(2)(ii)(B), Temporary Income Tax                     
          Regs., supra.  In Mordkin v. Commissioner, T.C. Memo. 1996-187,                    
          we held that the work done by a taxpayer on the board of                           
          directors dealing with a wide range of issues relating to the                      
          operation of a condominium hotel was not investor participation                    
          within the meaning of section 1.469-5T(f)(2)(ii)(B), Temporary                     
          Income Tax Regs., supra.  Petitioner's activities as an officer                    
          and member of the board of directors are similar to the                            
          activities performed by the taxpayer in Mordkin.  We similarly                     
          conclude that petitioner's activities as a board member of Wisp                    
          do not constitute investor participation.                                          
                We have found that petitioner spent at least 100 hours, but                  
          not more than 148 hours, on board activities in 1991, and at                       
          least 90 hours, but not more than 123 hours, in 1992.  Even if                     
          petitioner has exceeded the 100-hour threshold, petitioner's                       
          activities will not constitute material participation under                        
          section 1.469-5T(a)(3), Temporary Income Tax Regs., supra, unless                  
          she establishes that no other individual spent more time in                        
          connection with the condominium rental activity.  In this regard,                  
          in measuring the time spent by any particular employee at Wisp,                    
          petitioner argues that such an employee's time would need to be                    
          divided by 167 (the number of units participating in the rental                    



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