- 21 - The majority’s “plain reading” of section 469 and the recharacterization rule is also inconsistent with our precedent. In Schwalbach v. Commissioner, 111 T.C. 215 (1998), Sidell v. Commissioner, T.C. Memo. 1999-301, and Connor v. Commissioner, T.C. Memo. 1999-185, we considered the application of the recharacterization rule to C corporation shareholders. None of these opinions relied on the plain meaning of section 469 or of the recharacterization rule. To the contrary, all three opinions treated the 1994 final regulations (and the 1992 proposed regulations made applicable thereby) as the governing law. Our Schwalbach decision is a striking example of the importance we have attributed to the 1994 final activity regulation in this context. In Schwalbach, respondent applied the recharacterization rule to a C corporation shareholder. The taxpayers’ primary argument was that this application was invalid, because: (1) The 1994 final regulation defining “activity” was a prerequisite to the application of the recharacterization rule to a C corporation shareholder; and (2) the recharacterization rule and the 1994 final activity regulation were invalid for failure to comply with the notice and comment procedures of the Administrative Procedure Act, 5 U.S.C. sec. 553(b) and (c) (1994). See Schwalbach v. Commissioner, supra at 219. In the course of Schwalbach’s detailed analysis of the protracted regulatory process that ultimately gave rise to thePage: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
Last modified: May 25, 2011