Jack B. Newhart - Page 22




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          latter temporary regulation is invalid.  In support of that                 
          position, petitioner asserts:                                               
               The regulation [section 1.469-5T(b)(2)(ii), Temporary                  
               Income Tax Regs.,53 Fed. Reg. 5726 (Feb. 25, 1988)] too                
               simplistically uses the word management without any                    
               attempt to actually look at the surrounding facts and                  
               circumstances.  The regulation provides that ONLY one                  
               person can materially participate as a manager under                   
               the facts and circumstances test.  The regulation’s                    
               test is two-fold.  No person is compensated and no                     
               other individual invests more hours in management of                   
               the activity.  This emasculates the regular,                           
               continuous, and substantial requirement.                               
               We need not decide whether petitioner is correct in arguing            
          that section 1.469-5T(b)(2)(ii), Temporary Income Tax Regs., 53             
          Fed. Reg. 5726 (Feb. 25, 1988), is invalid.  That is because, on            
          the record before us,21 we find that, without regard to that                



               20(...continued)                                                       
               under paragraph (a)(7) of this section unless, for such                
               taxable year--                                                         
                    (A) No person (other than such individual) who                    
               performs services in connection with the management of                 
               the activity receives compensation described in section                
               911(d)(2)(A) in consideration for such services; and                   
                    (B) No individual performs services in connection                 
               with the management of the activity that exceed (by                    
               hours) the amount of such services performed by such                   
               individual.                                                            
               Petitioner concedes on brief that if we were to find sec.              
          1.469-5T(b)(2)(ii), Temporary Income Tax Regs., 53 Fed. Reg. 5726           
          (Feb. 25, 1988), to be valid, he does not satisfy that temporary            
          regulation.                                                                 
               21As discussed above, we did not find petitioner’s testimony           
          and the 1995 document to be credible, and we shall not rely on              
          that evidence.                                                              





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