Thomas P. and Ermina A. Krukowski - Page 16




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          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 469                  




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