Sidney C. Shaw - Page 23




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          not arbitrary, capricious, or manifestly contrary to the statute.           
          Krukowski v. Commissioner, 114 T.C. 366, 369-370 (2000);                    
          Schwalbach v. Commissioner, 111 T.C. 215, 219-224 (1998); see               
          also Sidell v. Commissioner, T.C. Memo. 1999-301, affd. 225 F.3d            
          103 (1st Cir. 2000).  Congress granted the Secretary of the                 
          Treasury the authority to prescribe regulations as may be                   
          necessary or appropriate to carry out the provisions of section             
          469, including regulations “which specify what constitutes an               
          activity, material participation, or active participation for               
          purposes of this section, * * * [and] requiring net income or               
          gain from a limited partnership or other passive activity to be             
          treated as not from a passive activity”.  Sec. 469(l)(1), (3).              
          In Krukowski v. Commissioner, supra at 369, the Court stated:               
                    We disagree with petitioner that the                              
               recharacterization rule is invalid.  The                               
               recharacterization rule is a legislative regulation,                   
               see Schwalbach v. Commissioner, 111 T.C. 215, 220                      
               (1998) (the Secretary had to comply with the                           
               Administrative Procedure Act (APA), 5 U.S.C. sec.                      
               553(b) and (c) (1994), when he prescribed sec. 1.469-                  
               2(f)(6), Income Tax Regs., because the rules contained                 
               therein are legislative rather than interpretive); see                 
               also Fransen v. United States, 191 F.3d 599, 600 (5th                  
               Cir. 1999); thus, it is invalid only if it is                          
               arbitrary, capricious, or manifestly contrary to the                   
               statute, see Chevron, U.S.A., Inc. v. Natural Resources                
               Defense Council, Inc., 467 U.S. 837, 844 (1984); see                   
               also McKnight v. Commissioner, 99 T.C. 180, 183 (1992)                 
               [affd. 7 F.3d 182 (5th Cir. 1993)].                                    
                    The recharacterization rule is not arbitrary,                     
               capricious, or manifestly contrary to the statute.  It                 
               was prescribed by the Secretary pursuant in part to the                
               specific grant of authority stated in section 469(l)                   






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