Thomas P. and Ermina A. Krukowski - Page 29




                                        - 29 -                                          
          Commissioner’s actions had at least alerted taxpayers to the                  
          possibility that the definition of activity was under                         
          reconsideration.  What we should decide in the case at hand,                  
          however, is that by promulgating the transitional rule of the                 
          1994 final regulations, the Commissioner wisely chose to apply                
          the new activity definition prospectively, unless the taxpayer                
          benefited otherwise.                                                          
               In summary, the majority’s plain reading of section 469 and              
          the recharacterization rule is an inadequate analysis of, and a               
          woefully inadequate response to, the situation in which                       
          petitioners (and other similarly situated taxpayers) found                    
          themselves during the year in issue.  To understand that                      
          situation fully-–and to interpret the silent 1992 proposed                    
          regulations properly--it’s unfortunately necessary to describe                
          the long and tortuous history of the section 469 regulations (and             
          the parties’ arguments based thereon) in more detail; to that                 
          task I now turn.                                                              





               10(...continued)                                                         
          29, 1996.  Of course, the Commissioner’s unexplained reversal of              
          position from the regulations promulgated in T.D. 8175, 1988-1                
          C.B. 191, 53 Fed. Reg. 5686 (Feb. 25, 1988) (the 1988 temporary               
          regulations), and in T.D. 8253, 1989-1 C.B. 121, 54 Fed. Reg.                 
          20527 (May 12, 1989) (the 1989 temporary regulations), would be               
          relevant in any judicial review of the 1994 final regulations, if             
          the Commissioner had decided to apply those regulations                       
          retroactively.  See Georgia Fed. Bank v. Commissioner, 98 T.C.                
          105 (1992).                                                                   




Page:  Previous  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  Next

Last modified: May 25, 2011