Thomas P. and Ermina A. Krukowski - Page 53




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               More importantly, notwithstanding any contrary inferences                
          that might have been drawn, it is clear that the activity                     
          definition contained in the 1994 final regulations was the first              
          activity rule expressly providing that a shareholder participated             
          in his C corporation’s activities.  I repeat the observation we               
          made in Schwalbach v. Commissioner, 111 T.C. at 226, about the                
          new 1994 activity definition:                                                 
               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.                                       
                                                                                       
          I also repeat that in Schwalbach we never questioned that this                
          1994 change was a prerequisite to the recharacterization of                   
          rental income received by the shareholder of a C corporation.                 
               In promulgating the 1994 final regulations containing this               
          substantial change, the Commissioner once again recognized the                
          importance of transitional relief.  The 1994 final regulations                
          provided that taxpayers could determine their tax liability for               
          years ending after May 10, 1992, and beginning before October 4,              
          1994, under the 1992 proposed regulations if they so chose,                   
          rather than under the final regulations.  See 59 Fed. Reg. 50485,             
          50486-50487 (Oct. 4, 1994).                                                   
               It would be inconsistent with this grant of transitional                 
          relief to hold to their detriment that shareholders participated              
          in the activities of their C corporations under the 1992 proposed             
          regulations.  Taxpayers could not learn or infer, from reading                




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