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failure to make the election in one year does not preclude the
taxpayer from making the election in a subsequent year. Id.
For purposes of the real estate professional exception, the
parties agree that petitioner materially participated in his
rental real estate activities only if his rental real estate
activities are treated as a single activity. See 469(h)(1); sec.
1.469-5T(a), Temporary Income Tax Regs., 53 Fed. Reg. 5725 (Feb.
25, 1988). The parties further agree that petitioner would not
satisfy the material participation requirement to qualify as a
real estate professional with respect to each of petitioner’s
rental properties considered separately. Therefore, the issue in
dispute is whether petitioner elected to treat his rental real
estate activities as a single activity pursuant to section
469(c)(7)(A).
The Omnibus Budget Reconciliation Act of 1993 (OBRA), Pub.
L. 103-66, sec. 13143(a), 107 Stat. 440, added section
469(c)(7)(A) to the passive activity loss rules effective for
taxable years beginning after December 31, 1993. Under section
469(c)(7)(A), a taxpayer may elect to treat all interests in
rental real estate as one activity for purposes of qualifying as
a real estate professional. Section 1.469-9(h), Proposed Income
Tax Regs., 60 Fed. Reg. 2561 (Jan. 10, 1995), required a taxpayer
wishing to make such an election to file a statement with the
taxpayer’s original return declaring that the election is under
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