Thomas P. and Ermina A. Krukowski - Page 32




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          regulations the recharacterization rule could not apply to income             
          received by a C corporation’s shareholder/lessor, notwithstanding             
          the absence of an “activity” definition in those regulations.                 
                    B.  The 1989 Temporary Regulations                                  
               In 1989, the Commissioner issued T.D. 8253, 1989-1 C.B. 121,             
          54 Fed. Reg. 20527 (May 12, 1989) (the 1989 temporary                         
          regulations).  The 1989 temporary regulations amended certain                 
          provisions of the 1988 temporary regulations; they also contained             
          the first regulation defining “activity” for purposes of section              
          469, section 1.469-4T, Temporary Income Tax Regs., 54 Fed. Reg.               
          20527, 20542 (May 12, 1989).  See T.D. 8253, 1989-1 C.B. 121,                 
          supra at “Summary”.                                                           
               The 1989 temporary regulations amended the participation                 
          definition contained in the 1988 temporary regulations by                     
          deleting the parenthetical phrase “(directly or indirectly, other             
          than through a C corporation)”.  Sec. 1.469-5T, Temporary Income              
          Tax Regs., 54 Fed. Reg. 20527, 20565 (May 12, 1989).12  As a                  
          result, the material participation definition in the 1989                     



               11(...continued)                                                         
          and (2), 53 Fed. Reg. 5686, 5727 (Feb. 25, 1988).                             
               12 The majority opinion refers to the participation                      
          definition of the 1988 temporary regulations, as amended by the               
          1989 temporary regulations, as the “amended 1988 temporary                    
          regulations”.  I prefer to describe the Commissioner’s                        
          simultaneous 1989 definitions of both “participation” and                     
          “activity” as the 1989 temporary regulations; after all, it was               
          those definitions taken together that established the law                     
          applicable to 1989.                                                           




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