Howard V. More - Page 9




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            excluded portfolio income from the passive loss rules:                                     
                  Portfolio investments ordinarily give rise to positive                               
                  income, and are not likely to generate losses which                                  
                  could be applied to shelter other income.  Therefore,                                
                  for purposes of the passive loss rule, portfolio income                              
                  generally is not treated as derived from a passive                                   
                  activity, but rather is treated like other positive                                  
                  income sources such as salary.  To permit portfolio                                  
                  income to be offset by passive losses or credits would                               
                  create the inequitable result of restricting sheltering                              
                  by individuals dependent for support on wages or active                              
                  business income, while permitting sheltering by those                                
                  whose income is derived from an investment portfolio.                                
                  [S. Rept. 99-313, supra, 1986-3 C.B. (Vol. 3) at 728.]                               
                  Income of a type generally regarded as portfolio income                              
            which is derived in the ordinary course of a trade or business                             
            does not fall within the definition of portfolio income.  See                              
            sec. 469(e)(1)(A); sec. 1.469-2T(c)(3)(i), Temporary Income Tax                            
            Regs., 53 Fed. Reg. 5686, 5713 (Feb. 25, 1988).  Congress and the                          
            Secretary reasoned that “the rationale for treating portfolio-                             
            type income as not from the passive activity does not apply [in                            
            these instances], since deriving such income is what the business                          
            activity actually, in whole or in part, involves.”  S. Rept. 99-                           
            313, supra, 1986-3 C.B. (Vol. 3) at 729.  For example, banks                               
            derive a large majority of their business income from interest.                            
            See id.  Under this rule, the bank would not treat the interest                            
            as portfolio income.  See id.                                                              
            Parties’ Arguments                                                                         
                  Petitioner claims that his gain is attributable to the                               
            disposition of substantially appreciated property used in a                                
            passive activity (his underwriting activity) for more than 20                              




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