-8-
187.
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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