Thomas P. and Ermina A. Krukowski - Page 21




                                        - 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 the                




Page:  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