- 12 - wholly owned personal service C corporation had to be recharacterized as nonpassive because the building was rented to a trade or business in which the taxpayer materially participated.4 In doing so, the court upheld the validity of the self-rented property rule, citing the following portion of the preamble to section 1.469-2T(f)(6), Temporary Income Tax Regs., 53 Fed. Reg. 5694 (Feb. 25, 1988):5 In the absence of regulations, a taxpayer could derive passive activity gross income from an active business in which tangible property is used by renting the property to an entity conducting the activity (or by causing an entity holding the property to rent the 4 In Fransen v. United States, 82 AFTR 2d 6621, 98-2 USTC par. 50776 (E.D. La. 1998), the taxpayer husband was the sole shareholder of Fransen & Hardin, a personal service corporation. The taxpayers leased a building (in which each had an undivided one-half interest) to Fransen & Hardin. The taxpayers reported $29,902 of net rental income which they sought to offset with passive activity losses from other activities in the aggregate amount of $32,606. The taxpayers argued that sec. 1.469-2(f)(6), Income Tax Regs., "flatly contradicts the plain language of the statute it purports to enforce: the statute deems rental activity income passive with a minor exception, and the regulation's allowance of recharacterization of that income as non-passive renders the regulation invalid." 5 We note that the preamble further states: the Conference Report accompanying the Act states that it would be appropriate for the Service to exercise its regulatory authority under sec. 469(l)(3) in the case of "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, 99th Cong., 2d Sess., Vol. II, at 147 (1986) [53 Fed. Reg. 5725 (Feb. 25, 1988).]Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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