- 21 - 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...)Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
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