- 9 - the trade or business. Respondent contends that use of the verb “was” in paragraph (2) of the relevant regulation means that for the purposes of the incidental exception, the property cannot be used in the trade or business activity and the rental activity simultaneously. We are not convinced by this argument. Section 1.469-1T(e) (3)(vi)(C), Temporary Income Tax Regs., 53 Fed. Reg. 5703 (Feb. 25, 1988), provides that the rental of property during a taxable year shall be treated as incidental to a trade or business activity if, inter alia, “The property was predominantly used in such trade or business activity during the taxable year or during at least two of the five taxable years that immediately precede the taxable year”. (Emphasis added.) The word “was” in the regulation refers not only to past years, but also to the current taxable year. The terms of the regulation are consistent with the conclusion that the property can be used in the trade or business activity at any time and still satisfy the requirements for the incidental exception to the definition of a rental activity. We conclude that the language of the regulation does not require that the taxpayer must cease using the property in a trade or business activity before it can be used in the rental activity. Second, respondent cites the preamble to T.D. 8175, the Treasury Decision promulgating section 1.469-1T(e)(3)(vi)(C),Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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