Stephen and Ann Schwalbach - Page 9

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               from that item of property is treated as not from a                    
               passive activity if the property--                                     
                         (i) Is rented for use in a trade or                          
                    business activity * * *  in which the                             
                    taxpayer materially participates * * * for                        
                    the taxable year; * * *                                           
          The fact that section 1.469-2(f)(6), Income Tax Regs, was                   
          prescribed by the Commissioner pursuant in part to the specific             
          grant of authority stated in section 469(l)(1), and that section            
          1.469-2(f)(6), Income Tax Regs., contains substantive rules that            
          are legislative in character, means that the promulgation of                
          section 1.469-2(f)(6), Income Tax Regs., is not excepted from the           
          notice and comment requirements of the APA, supra.  See Chevron,            
          U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.           
          837, 843-844 (1984); Bankers Life & Cas. Co. v. United States,              
          142 F.3d 973, 978-979 (7th Cir. 1998); Water Quality Association            
          Employees' Benefit Corp. v. United States, 795 F.2d 1303, 1305              
          (7th Cir. 1986); Wing v. Commissioner, 81 T.C. 17, 28 (1983); see           
          also Schaefer v. Commissioner, 105 T.C. 227, 229-231 (1995) (sec.           
          1.469-2T(c)(7)(iv), Temporary Income Tax Regs., 53 Fed. Reg.                
          5686, 5716 (Feb. 25, 1988), is a legislative regulation because             
          it was issued under the specific grant of authority contained in            
          sec. 469(l)(2)).                                                            
               Section 1.469-2(f)(6), Income Tax Regs., was issued on                 
          May 15, 1992, and it reads nearly verbatim as it appeared when it           
          was proposed on February 25, 1988.  See Notice of Proposed                  
          Rulemaking, 53 Fed. Reg. 5733 (Feb. 25, 1988) (text of section              



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