Thomas P. and Ermina A. Krukowski - Page 31




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          rule, like the current rule, applied where property was rented to             
          an “activity” in which the taxpayer materially “participates”.                
               The 1988 temporary regulations didn’t define “activity”.                 
          See sec. 1.469-4T, Temporary Income Tax Regs., 53 Fed. Reg. 5686,             
          5725 (Feb. 25, 1988), which stated in full:  “Definition of                   
          activity (temporary). [Reserved]”.  They did, however, contain a              
          regulation entitled “Material participation”, which defined both              
          “participation” and the kind of participation deemed to be                    
          material.  Sec. 1.469-5T, Temporary Income Tax Regs., 53 Fed.                 
          Reg. 5686, 5725-5728 (Feb. 25, 1988).  The participation                      
          definition in section 1.469-5T of the 1988 temporary regulations              
          provided:                                                                     
                    (f) Participation–-(1) In general.  Except as                       
               otherwise provided in this paragraph (f), any work done                  
               by an individual (without regard to the capacity in                      
               which the individual does such work) in connection with                  
               an activity in which the individual owns (directly or                    
               indirectly, other than through a C corporation) an                       
               interest at the time the work is done shall be treated                   
               for purposes of this section as participation of such                    
               individual in the activity. [Sec. 1.469-5T(f)(1),                        
               Temporary Income Tax Regs., 53 Fed. Reg. 5686, 5726                      
               (Feb. 25, 1988); emphasis added.]                                        
               The second parenthetical of this 1988 definition clearly                 
          provided that an individual shareholder did not participate (and              
          thus could not materially participate) in the activities of his C             
          corporations.11  As a result, under the 1988 temporary                        


               11 Unless the shareholder also owned a passthrough interest              
          in the C corporation’s activity, through which he could be                    
          considered to participate.  See sec. 1.469-5T(k), Examples (1)                
                                                               (continued...)           




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