Barry H. and Marilyn S. Scheiner - Page 16

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          considered for the purposes of section 1.469-5T(a)(7) and                          
          (b)(2)(ii)(A), Temporary Income Tax Regs., supra, are those                        
          within the prerogative of the owners; i.e., board activities.  As                  
          no members of the Wisp board were compensated, petitioner argues                   
          that her activities constitute material participation under                        
          section 1.469-5T(a)(7), Temporary Income Tax Regs., supra.                         
                We do not agree with petitioner's position.  The General                     
          Explanation passage cited by petitioner was not meant to be                        
          construed as a safe harbor.  Rather, the language cited by                         
          petitioner indicates that taxpayers may hire onsite management                     
          while engaging in activities sufficient to constitute material                     
          participation, but only "if the standard requiring regular,                        
          continuous, and substantial involvement" is otherwise satisfied.8                  

          8  Similarly, in Mordkin v. Commissioner, T.C. Memo. 1996-                         
          187, the taxpayer cited the colloquy between Senators Packwood                     
          and Hatfield in arguing that sec. 1.469-5T(a)(1), Temporary                        
          Income Tax Regs., 53 Fed. Reg. 5725 (Feb. 25, 1988), was invalid                   
          because it "required" an individual to participate in an activity                  
          for greater than 500 hours before being treated as having                          
          materially participated in that activity.  Specifically, the                       
          taxpayer relied upon the colloquy to argue that the determination                  
          of whether an individual materially participates in an activity                    
          should be based solely upon the integral nature of the work                        
          performed by the taxpayer, and not upon the quantity of work.  We                  
          rejected the taxpayer's argument, stating:                                         
                The foregoing colloquy between Senator Hatfield and                          
                Senator Packwood makes it clear that services performed                      
                by a taxpayer that are deemed integral to the                                
                operations of a condominium hotel will constitute                            
                material participation by the taxpayer in those                              
                operations only if the taxpayer performs those services                      
                in such a way and "to such an extent" that it shows                          
                that the taxpayer's involvement in those operations is                       
                regular, continuous, and substantial.  Contrary to [the                      
                taxpayer's] contention, that colloquy does not in any                        
                                                                  (continued...)             


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