James R. & Anita Madler - Page 11

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            petitioners are not entitled to the $25,000 offset provided at                              
            section 469(i).                                                                             
                  2.  Average Period of Customer Use Less Than 7 Days                                   
                  If the average period of customer use of petitioner's                                 
            condominium unit was 7 days or less, petitioner was not engaged                             
            in a rental activity.  Therefore, the activity of renting                                   
            petitioner's condominium unit does not constitute a "rental real                            
            estate activity" for purposes of section 469(i), and petitioners                            
            are not entitled to use the $25,000 offset provided therein.                                
            Although the activity of renting petitioner's unit does not                                 
            constitute a rental activity under this assumption, the activity                            
            will not be considered a passive activity if petitioners can                                
            establish that they materially participated in the activity.                                
            Sec. 469(c)(1)(B).  Material participation is defined as                                    
            involvement in the operations of an activity on a regular,                                  
            continuous, and substantial basis.  Sec. 469(h)(1).  A taxpayer                             
            can establish material participation by satisfying one of seven                             
            tests provided in the regulations.  Sec. 1.469-5T(a), Temporary                             
            Income Tax Regs., 53 Fed. Reg. 5725-5726 (Feb. 25, 1988); see                               
            also Mordkin v. Commissioner, T.C. Memo. 1996-187.  In this                                 
            instance, however, we see no reason to set forth these tests and                            
            discuss at length whether petitioners have satisfied any one of                             
            them.  Petitioners have offered little information concerning                               
            whether their involvement in the operation of petitioner's unit                             





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