Robert Serenbetz and Karen J. Serenbetz - Page 8

                Based on the record before us, we are unable to conclude that                
          petitioners spent more than 100 hours participating in the rental                  
          activities of their Vermont condominium during 1991 or 1992.                       
          However, assuming arguendo that they did, we believe that                          
          petitioners' participation in the rental activities of their                       
          Vermont condominium was less than that of other individuals.  Thus,                
          they do not come within the safe harbor requirements of section                    
          1.469-5T(a)(3), Temporary Income Tax Regs., 53 Fed. Reg. 5726 (Feb.                
          25, 1988).                                                                         
                Petitioners contend that although the partnership's rental                   
          activities were conducted by an on-site staff of nine employees,                   
          the number of on-site employees (9), should be divided by the                      
          number of units in the partnership (40) and when that is done, it                  
          is unlikely that any of the nine on-site employees could have spent                
          more than 40 hours on petitioners' unit during 1991 or 1992.  We do                
          not agree with petitioners' logic.  The language of sec. 1.469-                    
          5T(a)(3), Temporary Income Tax Regs., contains nothing which                       
          suggests that participation should be computed on a per unit basis.                
          See Goshorn v. Commissioner, T.C. Memo. 1993-578.                                  
                It is settled law that taxpayers bear the burden of proving                  
          the determinations of the Commissioner in a notice of deficiency                   
          are in error.  Rule 142(a); Welch v. Helvering, 290 U.S. 111                       
          (1933).  Petitioners have failed to establish that they were                       
          material participants in the rental activities of their Vermont                    

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