- 47 - particular Code provisions”, respondent was, of course, free to amend his regulations to require a minimum period of continuous operation of a foreign disregarded entity’s business, prior to the disposition of that business, as a condition precedent to treating the owner as having been engaged in the trade or business for purposes of characterizing the gain or loss. But, in the absence of respondent’s exercise of that authority, we must apply the regulation as written. See Exxon Corp. v. United States, 88 F.3d 968, 974-975 (Fed. Cir. 1996); Woods Inv. Co. v. Commissioner, 85 T.C. 274, 282 (1985); Henry C. Beck Builders, Inc. v. Commissioner, 41 T.C. 616, 628 (1964). As we observed in sustaining the application of a provision of the consolidated return regulations, the fact that the regulation gives rise to a perceived abuse is “a problem of respondent’s own making”, a problem that respondent has allowed to persist by choosing “not to amend the regulations to correct the problem.” CSI Hydrostatic Testers, Inc. v. Commissioner, 103 T.C. 398, 411 (1994), affd. 62 F.3d 136 (5th Cir. 1995).21 21 Respondent did include an allegedly corrective amendment as part of proposed regulations issued on Nov. 29, 1999. See REG-110385-99, 64 Fed. Reg. 66591 (Nov. 29, 1999). The proposed regulations contained a special rule for foreign disregarded entities used in a so-called extraordinary transaction, one of which constitutes the sale of a 10-percent or greater interest in such an entity within 12 months of the entity’s change in classification from association taxable as a corporation to disregarded entity. Under those circumstances, the proposed regulations provided that the disregarded entity “will instead be (continued...)Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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