Thomas P. and Ermina A. Krukowski - Page 46




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          rule.  With respect to the issue in the case at hand, the                     
          recharacterization rule and the 1992 proposed regulations are                 
          ambiguous.                                                                    
               Nevertheless, setting aside for the moment any inferences                
          that may be drawn from the silence (or other ambiguity) of the                
          1992 proposed regulations, three aspects of those regulations are             
          crystal clear.  First, the 1992 proposed regulations do not                   
          expressly provide that a shareholder participates in C                        
          corporation activities.  Second, the 1992 proposed regulations do             
          not expressly disavow the rule of nonattribution that had been                
          set forth in the 1988 and 1989 temporary regulations.  Third, the             
          1992 proposed regulations neither state that the Commissioner was             
          changing his position on shareholder participation in C                       
          corporation activities, nor explain why such a change was being               
          made.  For all these reasons, the standards of fairness developed             
          by this Court require us to interpret the ambiguity of the 1992               
          proposed regulations as maintaining the nonattribution                        
          interpretation of the statute and the recharacterization rule                 
          formerly contained in the temporary regulations.                              
               As an example of these standards of fairness, we noted in                
          Georgia Fed. Bank v. Commissioner, 98 T.C. at 110, that sharp                 
          changes of agency course constitute danger signals to which a                 
          reviewing court must be alert; we also stated that an agency that             
          changes its position must acknowledge that its interpretation has             






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