Tony R. Carlos and Judith D. Carlos - Page 10

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          Commissioner, T.C. Memo. 1999-301, affd. 225 F.3d 103 (1st Cir.             
          2000).  The Courts of Appeals for the First, Fifth, and Seventh             
          Circuits have also upheld the validity of section 1.469-2(f)(6),            
          Income Tax Regs.  See Krukowski v. Commissioner, 279 F.3d 547               
          (7th Cir. 2002); Sidell v. Commissioner, 225 F.3d 103 (1st Cir.             
          2000); Fransen v. United States, 191 F.3d 599 (5th Cir. 1999).              
               Section 1.469-2(f)(6), Income Tax Regs., explicitly                    
          recharacterizes net rental activity income from an “item of                 
          property” rather than net income from the entire rental                     
          “activity”.  Both section 469 and the regulations thereunder                
          clearly distinguish between net income from an “item of property”           
          and net income from the entire “activity”,8 which might include             
          rental income from multiple items of property.9  Under the                  
          authority of section 469(l)(2), the Secretary could have                    


               8Sec. 469(l)(2) authorizes the implementation of regulations           
          to remove “certain items of gross income” from the determination            
          of income from an “activity”.  The designation of an “[item] of             
          gross income” to be removed from such a determination is narrower           
          than and distinct from the term “activity” income (from which the           
          item must be removed).  Since sec. 1.469-2(f)(6), Income Tax                
          Regs., designates “net rental activity income for the year from             
          * * * [an] item of property” as the item of gross income to be              
          removed pursuant to sec. 469(l)(2) from the determination of                
          income from the “activity”, net rental activity income from an              
          “item” of property is also narrower than and distinct from the              
          broader term “activity” income.                                             
               9The fact that multiple rentals may be grouped together                
          pursuant to sec. 1.469-4(c), Income Tax Regs., to make up a                 
          single “activity” further evidences the distinction between net             
          income from an “item” of property and net income from the entire            
          “activity”.                                                                 





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