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petitioner has failed to carry his burden of proving that he is
to be treated as having materially participated in the Chicken
Bar business under section 1.469-5T(a)(1), Temporary Income Tax
Regs., 53 Fed. Reg. 5725 (Feb. 25, 1988).19
We turn next to section 1.469-5T(a)(7), Temporary Income Tax
Regs., 53 Fed. Reg. 5726 (Feb. 25, 1988), on which petitioner
relies. Petitioner argues that, in applying that temporary
regulation in this case, we should disregard section 1.469-
5T(b)(2)(ii), Temporary Income Tax Regs., 53 Fed. Reg. 5726 (Feb.
25, 1988).20 That is because, according to petitioner, that
18(...continued)
thereunder on which petitioner relies. See Wichita Terminal
Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162
F.2d 513 (10th Cir. 1947).
19Assuming arguendo that we had found the 1995 document to
be credible, on the record before us, we find that petitioner has
failed to carry his burden of showing that many of the activities
listed in that document constitute activities performed by him in
his capacity as other than an investor. See sec. 1.469-
5T(f)(2)(ii), Temporary Income Tax Regs., 53 Fed. Reg. 5727 (Feb.
25, 1988). In this connection, petitioner’s reliance on Mordkin
v. Commissioner, T.C. Memo. 1996-187, is misplaced. Mordkin is
distinguishable from the instant case.
20In determining whether a taxpayer is to be treated as
materially participating in an activity under sec. 1.469-
5T(a)(7), Temporary Income Tax Regs., 53 Fed. Reg. 5726 (Feb. 25,
1988), sec. 1.469-5T(b)(2)(ii), Temporary Income Tax Regs., 53
Fed. Reg. 5726 (Feb. 25, 1988), provides:
(ii) Certain management activities. An
individual’s services performed in the management of an
activity shall not be taken into account in determining
whether such individual is treated as materially
participating in such activity for the taxable year
(continued...)
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