Robert W. and Lila L. Blewett - Page 10




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          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),               






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