- 23 - 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)Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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