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5725-5726 (Feb. 25, 1988).17 Respondent counters that petitioner
does not comply with either of those provisions of the temporary
regulations and that consequently he is not to be treated as
having materially participated in the Chicken Bar business within
the meaning of section 469(h)(1).
We turn first to section 1.469-5T(a)(1), Temporary Income
Tax Regs., 53 Fed. Reg. 5725 (Feb. 25, 1988), on which petitioner
relies. According to petitioner, the 1995 document and his
testimony establish that he spent 523 hours on activities
relating to the conduct of the Chicken Bar business and that all
of those hours must be taken into account in determining whether
he satisfies section 1.469-5T(a)(1), Temporary Income Regs., 53
Fed. Reg. 5725 (Feb. 25, 1988). As we indicated above, we shall
not rely on that evidence in determining whether petitioner has
carried his burden of establishing that he satisfies that
temporary regulation.18 On the record before us, we find that
17Petitioner does not rely on sec. 1.469-5T(a)(2), (3), (4),
(5), or (6), Temporary Income Tax Regs., 53 Fed. Reg. 5725-5726
(Feb. 25, 1988), in support of his position that he is to be
treated as having materially participated within the meaning of
sec. 469(h)(1) in the Chicken Bar business.
18Petitioner failed to call Mr. Caplan, the president of
Chicken Bar who was involved in its day-to-day operations, as a
witness to corroborate petitioner’s position with respect to his
claimed role in the Chicken Bar business. We infer from
petitioner’s failure to call Mr. Caplan that his testimony would
not have been favorable to petitioner’s position on the question
of whether petitioner materially participated in the Chicken Bar
business within the meaning of sec. 469(h)(1) and the regulations
(continued...)
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