William C. and Cheryl M. Fowler - Page 11




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               during such taxable year are performed in real property                
               trades or businesses in which the taxpayer materially                  
               participates, and                                                      
                    (ii) such taxpayer performs more than 750 hours of                
               services during the taxable year in real property                      
               trades or businesses in which the taxpayer materially                  
               participates.                                                          
               In the case of a joint return, the above requirements for              
          qualification as a real estate professional are satisfied if and            
          only if either spouse separately satisfied these requirements.              
          Sec. 469(c)(7)(B).  Thus, if either spouse qualifies as a real              
          estate professional, the rental activities of the real estate               
          professional are not a per se passive activity under section                
          469(c)(2).  Instead, the real estate professional’s rental                  
          activities would be treated as a passive activity under section             
          469(c)(1) unless the taxpayer materially participated in the                
          activity.                                                                   
               Material participation is defined as involvement in the                
          operations of the activity that is regular, continuous, and                 
          substantial.  Sec. 469(h)(1).  For purposes of determining                  
          whether a taxpayer materially participated in a trade or                    
          business, this requirement must be met with respect to each                 
          interest in rental real estate unless the taxpayer makes an                 
          election to treat all interests in rental real estate as a single           
          rental real estate activity.  Sec. 469(c)(7)(A).  Petitioner did            
          not make a timely election to treat all interests in rental real            
          estate as a single rental real estate activity.  In determining             





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