Stephen and Ann Schwalbach - Page 23

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          Regs., could have seen and anticipated an attribution rule                  
          therein may also be understood from the legislative history of              
          section 469.  The legislative history speaks directly to an                 
          attribution rule, stating explicitly:                                       
               The conferees believe that clarification is desirable                  
               regarding the regulatory authority provided to the                     
               Treasury with regard to the definition of income that                  
               is treated as portfolio income or as otherwise not                     
               arising from a passive activity.  The conferees intend                 
               that this authority be exercised to protect the                        
               underlying purpose of the passive loss provision, i.e.,                
               preventing the sheltering of positive income sources                   
               through the use of tax losses derived from passive                     
               business activities.                                                   
                    Examples where the exercise of such authority may                 
               (if the * * * [Commissioner] so determines) be                         
               appropriate include the following: * * * related party                 
               leases or sub-leases, with respect to property used in                 
               a business activity, that have the effect of reducing                  
               active business income and creating passive income.  *                 
               * *  [H. Conf. Rept. 99-841 (Vol. II), at II-197                       
               (1986), 1986-3 C.B. (Vol. 4) 147.]                                     
               In sum, we believe that the purposes of notice and comment             
          were adequately served in the Commissioner's promulgation of                
          section 1.469-4, Income Tax Regs.  The Commissioner adopted the             
          attribution rule pursuant to an explicit congressional grant of             
          authority, and commentators had a fair opportunity to present               
          their views on the contents of that rule.  The rule derives                 
          directly from the legislative history to section 469, and it is             
          both in character with the original proposal for section 469, and           
          the regulations thereunder, and a logical outgrowth of the two              
          rounds of notice and comment on the proposed regulations.                   
          Whereas petitioners would force the Commissioner to comply with             



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