Jack B. Newhart - Page 21




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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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