Thomas P. and Ermina A. Krukowski - Page 54




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          the 1992 proposed regulations, that shareholders participated in              
          the activities of their C corporations.  Moreover, the addition               
          of an express attribution rule to the 1994 final regulations was              
          a significant change from those proposed regulations.  The only               
          possible purpose of the transitional rule contained in the 1994               
          final regulations was to protect taxpayers from this type of                  
          unanticipated change during the interim period.                               
               The Commissioner has abused the regulatory process in                    
          backing and filling on the transitional rule issue in this case               
          and in previous cases.  Having with one hand granted transitional             
          relief in the 1994 final regulations by allowing C corporation                
          shareholders for 1993-94 to apply the 1992 proposed regulations,              
          the Commissioner should not be able to take it away with the                  
          other, through statutory notices and litigation.                              
               I would hold that shareholders who received net rental                   
          income from their C corporations--during years to which the 1992              
          proposed regulations apply--are not subject to the                            
          recharacterization rule.  The majority’s holding to the contrary              
          is incorrect.                                                                 
               CHABOT, PARR, WHALEN, HALPERN, GALE, and MARVEL, JJ., agree              
          with this concurring in part and dissenting in part opinion.                  












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