Thomas P. and Ermina A. Krukowski - Page 6




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          and any other acceptable materials, together with the affidavits,             
          if any, show that there is no genuine issue as to any material                
          fact and that a decision may be rendered as a matter of law."                 
          Rule 121(b); see P & X Mkts., Inc. v. Commissioner, 106 T.C. 441,             
          443 (1996), affd. without published opinion 139 F.3d 907 (9th                 
          Cir. 1998); see also Anderson v. Liberty Lobby, Inc., 477 U.S.                
          242, 247-251 (1986).                                                          
               Petitioner challenges the ability of the Commissioner to                 
          apply the recharacterization rule to the rental income from the               
          office building.  Petitioner argues primarily that the                        
          recharacterization rule is invalid because it conflicts with                  
          explicit statutory text as to the characterization of income                  
          derived from a rental activity.  Petitioner observes that section             
          469(c)(2) and (4) provides that a rental activity is generally                
          passive and that the recharacterization rule provides that                    
          certain rental income is nonpassive.                                          
               We disagree with petitioner that the recharacterization rule             
          is invalid.  The recharacterization rule is a legislative                     
          regulation, see Schwalbach v. Commissioner, 111 T.C. 215, 220                 
          (1998) (the Secretary had to comply with the Administrative                   
          Procedure Act (APA), 5 U.S.C. sec. 553(b) and (c) (1994), when he             
          prescribed sec. 1.469-2(f)(6), Income Tax Regs., because the                  
          rules contained therein are legislative rather than                           
          interpretative); see also Fransen v. United States, 191 F.3d 599,             






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