Paul and Pauline D. Kessler - Page 14

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          activity that a taxpayer conducts through a C corporation subject           
          to section 469 may be grouped with another activity of the                  
          taxpayer, but only for purposes of determining whether the                  
          taxpayer materially or significantly participates in the other              
          activity.”  (Emphasis added.)  See sec. 1.469-5, Income Tax Regs.           
          (regulations on what constitutes material participation).  Since            
          we find that petitioners are not excepted from the general                  
          definition of “rental activity,” we never ask the subsidiary                
          question of whether petitioners materially participated in such             
          nonrental activities.  See sec. 469(c)(1); Tarakci v.                       
          Commissioner, T.C. Memo. 2000-358; Welch v. Commissioner, T.C.              
          Memo. 1998-310 (“If petitioner establishes that the activity was            
          not a rental activity, he then must establish that he materially            
          participated in the activity to avoid the proscription of section           
          469.").                                                                     
               2.  Accuracy-Related Penalty                                           
               Respondent determined an accuracy-related penalty of $2,765            
          for 1991 based solely upon petitioners’ failure to report rental            
          income.17  Prior to submission, petitioners conceded that they              
          had unreported rental income of $55,000 in 1991 which should have           
          been included on their Schedule E.  Respondent’s determination is           
          presumed correct, and the burden lies with petitioners to                   


               17On brief, respondent states that he does not seek an                 
          increase in the amount of the penalty determined.                           





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