- 16 - comply with the APA when he prescribed section 1.469-4(a), Income Tax Regs.; if the Secretary had not complied with the APA, the taxpayers argued, then the recharacterization rule was invalid as applied to them. We concluded that the Secretary met the APA’s requirements; in so doing, we analyzed the statutory text, relevant legislative history, and various regulations prescribed under section 469. The taxpayers in Schwalbach also advanced an alternative argument that is the same argument that petitioner advances herein. The taxpayers in Schwalbach argued on brief: in the event it is redetermined the provisions of Treas. Reg. Sec. 1.469(d)(5) [sic] apply, the provisions of Treas. Reg. Sec. 1.469-4T(b)(2)(ii)(B) should be available to petitioners through 1994 due to the continued confusion with respect to provisions of the May, 1992, proposed regulations and the absence of a definitive statement as regards a non-passthrough entity not conducting passive activities through itself. See, effective date and transition rules under Treas. Reg. Sec. 1.469-11(b)(1). We rejected this argument summarily, holding that nothing in section 1.469-11, Income Tax Regs., allowed us to apply the exception appearing in the pre-1992 regulations under which a taxpayer would not be considered to be a material participant of an activity conducted through a C corporation. See Schwalbach v. Commissioner, supra at 230. We stated: we decline petitioners' invitation to allow them to apply the rules of section 1.469-4T(b)(ii)(B), Temporary Income Tax Regs., 54 Fed. Reg. 20543, in lieu of the rules stated in section 1.469-4(a), Income Tax Regs. Simply put, the effective date and transition rules related to the regulatory rules under section 469Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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