Thomas P. and Ermina A. Krukowski - Page 45




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          Connor v. Commissioner, T.C. Memo. 1999-185, suggested Schwalbach             
          had concluded that the 1994 final regulations clarified the                   
          proposed regulations, what we actually said in Schwalbach was                 
          that the preamble to the final regulations itself asserted that               
          the inclusion of an attribution rule in the final regulations was             
          a clarification; we didn’t so conclude ourselves.  To the                     
          contrary, in Schwalbach v. Commissioner, supra at 221-226, we                 
          described the language added to the 1994 final regulations as a               
          “change” from the 1992 proposed regulations, as a “new position”,             
          and as a “complete reversal” from the 1989 temporary regulations.             
          We also stated that “the change in language from the proposed                 
          regulations was substantial; up until the final regulations, the              
          Commissioner had not publicly taken the position that an                      
          individual’s activities could include activities conducted                    
          through a C corporation.”  Id. at 226.                                        
               VII.  Fairness Demands We Interpret the Silence of the 1992              
                     Proposed Regulations as Continuing the                             
                     Nonparticipation Rule of the Temporary Regulations                 
               Respondent and the majority assert that the silence of the               
          1992 proposed regulations must be interpreted as repealing the                
          nonparticipation rule of the temporary regulations and as                     
          prescribing an express participation rule instead.  For the                   
          reasons just set forth, I disagree.  Placing the silence of the               
          1992 proposed regulations in its proper context, it’s difficult               
          to infer from such silence either an intent to repeal a                       
          nonparticipation rule, or an intent to prescribe a participation              




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