Jack B. Newhart - Page 20




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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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