Thomas P. and Ermina A. Krukowski - Page 8




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               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 Secretary so determines) be appropriate include                  
               the following * * * (2) 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, at 147, 1986-3 C.B. (Vol. 4) 1,                      
               147.]                                                                    
               Petitioner also argues that the recharacterization rule is               
          inapplicable to this case by virtue of section 1.469-                         
          11(c)(1)(ii), Income Tax Regs., which provides that the rule does             
          not apply to income “attributable to the rental of * * * property             
          pursuant to a written binding contract entered into before                    
          February 19, 1988.”  Petitioner asserts that the office building              
          lease in effect during 1994 was the 1987 lease, or, in other                  
          words, that he leased the office building to the law firm during              
          1994 pursuant to a pre-February 19, 1988, written binding                     
          contract.  We disagree.  As discussed below, we conclude that the             
          office building lease in effect during 1994 was the 1991 lease                
          and, moreover, that the 1991 lease and the 1987 lease are                     
          separate contracts.                                                           
               Applicable State (Wisconsin) law characterizes the 1991                  
          lease as a renewal (as opposed to an extension) of the 1987                   
          lease, which, in turn, means that the 1991 lease is a contract                
          separate from the 1987 lease.  See Seefeldt v. Keske, 111 N.W.2d              
          574, 575-576 (Wis. 1961).  We look at three critical factors to               






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