Thomas P. and Ermina A. Krukowski - Page 25




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          Commissioner’s inclusion of express nonattribution rules in two               
          sets of temporary regulations therefore completely refutes the                
          majority’s conclusion that shareholders participate in C                      
          corporation activities under the plain language of section 469                
          and the recharacterization rule.                                              
               II.  The Silence of the 1992 Proposed Regulations Is Not                 
                    Dispositive                                                         
               The majority correctly note that the Commissioner allowed                
          the relevant portions of the temporary regulations to “sunset” in             
          1992.  See infra p. 34.  At the same time, the Commissioner                   
          promulgated the 1992 proposed regulations, which apply to the                 
          year in issue.  See id.                                                       
               Unlike the temporary regulations, the 1992 proposed                      
          regulations say nothing about shareholder participation in C                  
          corporation activities.  The majority conclude, because the 1992              
          proposed regulations do not expressly preclude such                           
          participation, that shareholders participate in C corporation                 
          activities even when the proposed regulations apply.  Once again,             
          I disagree.                                                                   
               The majority’s interpretation of the “silent” 1992 proposed              
          regulations rests on their conclusion that shareholders                       
          participate in C corporation activities under the plain meaning               
          of the statute and the recharacterization rule.  As explained                 
          above, the majority’s plain reading is incorrect; their                       
          interpretation of the 1992 proposed regulations is therefore also             





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