Thomas P. and Ermina A. Krukowski - Page 11




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          certain proposed regulations to ascertain their tax liability for             
          years ending after May 10, 1992, and beginning before October 4,              
          1994.  See sec. 1.469-11(b)(1), Income Tax Regs.  These proposed              
          regulations (the 1992 proposed regulations) were prescribed by                
          the Secretary in 1992 to define the word “activity” for purposes              
          of the passive loss rules.  Notice of Proposed Rulemaking, PS-1-              
          89, 1992-1 C.B. 1219, 57 Fed. Reg. 20802 (May 15, 1992).                      
          Petitioner argues that the 1992 proposed regulations preclude a               
          shareholder from participating in the activities of a C                       
          corporation, which, petitioner concludes, means that the                      
          recharacterization rule cannot be applied to his 1994 income from             
          the office building.                                                          
               We disagree with petitioner’s assertion that section 1.469-              
          11(b)(1), Income Tax Regs., precludes taxpayers from                          
          participating in activities conducted by C corporations.  Our                 
          conclusion is driven by a plain reading of the relevant text;                 
          namely, section 469(a)(2)(A) and (h)(1) and section 1.469-                    
          2(f)(6)(i), Income Tax Regs.  See Commissioner v. Soliman, 506                
          U.S. 168, 174 (1993); Crane v. Commissioner, 331 U.S. 1, 6                    
          (1947); Venture Funding, Ltd. v. Commissioner, 110 T.C. 236, 241-             
          242 (1998), affd. without published opinion 198 F.3d 248 (6th                 
          Cir. 1999).  Section 469(a)(2)(A) provides in relevant part that              
          the passive activity rules apply to “any individual”.  Section                
          469(h)(1) provides in relevant part that an individual is treated             
          as materially participating in an activity when he or she “is                 




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