Nicholas A. and Marjorie E. Paleveda - Page 9

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          however, petitioners' modified adjusted gross income was greater            
          than $150,000, with the result that the $25,000 offset was phased           
          out.5                                                                       
               Petitioners argue that they meet the requirements of the               
          section 469 material participation test in that the rental                  
          properties were petitioners' former homes rented out and                    
          petitioner materially participated in their active management.              
          Additionally, petitioner contends that, pursuant to section                 
          469(i), their passive losses should be exempted by the $25,000              
          offset (to the extent of the phaseout) for rental real estate               
          activities.                                                                 
               Respondent argues that the exception provided in section               
          469(c)(7) for certain taxpayers who materially participate in a             
          real property business does not apply to the years in issue.  We            
          agree.  Section 469(c)(2) provides the general rule that the term           
          "passive activity" includes any rental activity.  Section                   
          469(c)(4) provides that section 469(c)(2) is to be applied                  
          without regard to whether or not the taxpayer materially                    
          participates in the activity.  For taxable years beginning after            

          4(...continued)                                                             
               not exceed $25,000.                                                    
          5    Sec. 469(i)(3)(A) provides:                                            
                    (A)  In general.--In the case of any taxpayer, the                
               $25,000 amount under paragraph (2) shall be reduced                    
               (but not below zero) by 50 percent of the amount by                    
               which the adjusted gross income of the taxpayer for the                
               taxable year exceeds $100,000.                                         




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