- 45 - 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 participationPage: Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Next
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