Thomas P. and Ermina A. Krukowski - Page 12




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          involved in the operations of the activity on a basis which is *              
          * * regular, * * * continuous, and * * * substantial”.4  Section              
          1.469-2(f)(6)(i), Income Tax Regs., provides in relevant part                 
          that rental income is recharacterized as nonpassive income if the             
          underlying property “Is rented for use in a trade or business                 
          activity * * * in which the taxpayer materially participates”,                
          sec. 1.469-2(f)(6)(i), Income Tax Regs.                                       
               Nowhere in section 469 or the regulations thereunder do we               
          read, as petitioner asks us to hold, that an individual’s                     
          “regular”, “continuous”, and “substantial” involvement in the                 
          operations of an activity is not treated as materially                        
          participating in that activity when the activity is operated by a             
          C corporation.  Petitioner correctly observes that the Secretary              
          had set forth such an exception in two sets of temporary                      
          regulations that he had prescribed before 1992.  In 1988, the                 
          Secretary prescribed section 1.469-5T(f)(1), Temporary Income Tax             
          Regs., 53 Fed. Reg. 5686, 5726 (Feb. 25, 1988), (the 1988                     


               4 Although we understand the words “regular”, “continuous”,              
          and “substantial” to support a finding that petitioner materially             
          participated in the law firm’s business activity, we note that                
          petitioner also meets the definition of the term “material                    
          participation” as set forth in the applicable regulations.  Sec.              
          1.469-5T(a) and (d), Temporary Income Tax Regs., 53 Fed. Reg.                 
          5686 (Feb. 25, 1988) (an individual materially participates in an             
          activity if, inter alia, he or she participates in an activity                
          for more than 500 hours in the taxable year, he or she                        
          participates in the activity for more than 100 hours in the                   
          taxable year and no other individual spends more time in the                  
          activity, or the activity involves the performance of legal                   
          services and the individual had materially participated in the                
          activity during any 3 years prior to the year in question).                   




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