T.C. Memo. 1999-301
UNITED STATES TAX COURT
CHESTER F. AND FAYE L. SIDELL, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10489-98. Filed September 4, 1999.
Respondent recharacterized the income
petitioner husband received from the rental of
property to his wholly owned C corporation
from passive to nonpassive, pursuant to the
attribution rule of sec. 1.469-4(a), Income
Tax Regs., and the so-called self-rented
property rule contained in sec. 1.469-2(f)(6),
Income Tax Regs. As a consequence of this
recharacterization, petitioners were able
neither to reduce such rental income by losses
from other rental properties nor to use
certain rehabilitation credits.
1. Held: Pursuant to sec. 469(l),
I.R.C., the Secretary properly promulgated the
attribution and self-rented property rules.
The self-rented property rule (by virtue of
the attribution rule) is valid insofar as it
recharacterizes rental income received by a
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controlling shareholder from a C corporation
from passive to nonpassive. See Schwalbach v.
Commissioner, 111 T.C. 215 (1998).
2. Held further: The transitional
relief provided in sec. 1.469-11(b), Income
Tax Regs., is of no benefit to petitioners in
determining their 1993 and 1994 tax liability
because sec. 1.469-4, Proposed Income Tax
Regs., 57 Fed. Reg. 20804 (May 15, 1992), PS-
1-89, 1992-1 C.B. 1219, is silent as to
whether the activities of a C corporation are
or are not attributable to the corporation's
shareholder.
3. Held further: Respondent properly
disallowed rehabilitation credits claimed by
petitioners for 1993 and 1994 because once
their net rental income for those years is
recharacterized as nonpassive, the limitation
on passive activity credits mechanically
disallows the claimed credits.
David R. Andelman and Juliette Galicia Pico, for petitioners.
Mary P. Hamilton, David N. Brodsky, and Maura A. Sullivan, for
respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
JACOBS, Judge: Respondent determined deficiencies and an
accuracy-related penalty under section 6662(a) with respect to
petitioners' Federal income taxes, as follows:
Penalty
Year Deficiency Sec. 6662(a)
1993 $103,728 ---
1994 41,621 $8,324
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The deficiencies stem from respondent's recharacterizing the
income Chester F. Sidell (Mr. Sidell) received from the rental of
properties to his wholly owned C corporation from passive to
nonpassive. Respondent now concedes the accuracy-related penalty
under section 6662(a) for 1994.
The issues for decision are: (1) Whether respondent's
recharacterization of the rental income Mr. Sidell received from
his wholly owned C corporation was proper; and if so, (2) whether
respondent properly disallowed the rehabilitation credits
petitioners claimed for those years.
All section references are to the Internal Revenue Code as in
effect for the years in issue.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The
stipulation of facts and the exhibits submitted therewith are
incorporated herein by this reference.
Petitioners, husband and wife, resided in Framingham,
Massachusetts, at the time they filed their petition contesting
respondent's determinations. For both years in issue, petitioners
filed joint Federal income tax returns.
Acquisition of Rental Properties
Mr. Sidell was the sole beneficiary of five trusts: The
Manche Realty Trust, CFS Realty Trust, FLS Realty Trust, GES Realty
Trust, and RMS Realty Trust. All five trusts are nominee trusts
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under Massachusetts law and constitute grantor trusts for Federal
income tax purposes. All income, deductions, and credits of these
trusts were reported as pass-through items on petitioners' 1993 and
1994 Federal income tax returns.
On November 8, 1985, Manche Realty Trust acquired title to the
land and building known as the Everett Mill Cotton Weaving House
(the Everett Mill property), located at 181-183 Canal Street,
Lawrence, Massachusetts. The Everett Mill property is located in
a National Register historical district. Immediately after its
purchase in 1985, the Everett Mill property was leased to KGR, Inc.
(KGR), Mr. Sidell's wholly owned corporation. At the time of its
acquisition, the Everett Mill property was in poor condition.
On July 6, 1992, Mr. Sidell executed an agreement for the
acquisition of the land and building known as Kunhardt Mill,
located at 60 Island Street, Lawrence, Massachusetts. The Kunhardt
Mill property is a historic mill dating back to the late 1800's and
is located across the street from the Everett Mill property in the
same National Register historical district. On October 14, 1992,
CFS Realty Trust (rather than Mr. Sidell) took title to the
Kunhardt Mill property. At the time of its acquisition, the
Kunhardt Mill property needed substantial repair. After its
acquisition, the Kunhardt Mill property was leased to KGR. The
property was subsequently renovated and thereafter used as KGR's
corporate headquarters.
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On February 23, 1993, FLS Realty Trust acquired the land and
building located at Canal, Mill, and Methuen Streets, Lawrence,
Massachusetts (the FLS Realty Trust property). This property was
subsequently leased to KGR to alleviate a parking shortage around
KGR's offices.
On July 14, 1993, and May 16, 1994, respectively, GES Realty
Trust and RMS Realty Trust acquired properties located near the
Everett Mill, Kunhardt Mill, and FLS Realty Trust properties.
These properties were acquired in anticipation of future expansion
of KGR's business; they were not rented to KGR during the years in
issue.
KGR
KGR, incorporated in Massachusetts, has its principal place of
business in Lawrence, Massachusetts. For Federal income tax
purposes it is a subchapter C corporation. KGR is engaged in the
business of manufacturing women's and children's apparel under
private labels for such customers as Nordstrom, Talbots, and
Dillards.
During the years in issue, petitioner was the president,
treasurer, and sole director of KGR. With the exception of its
retail sales operation, which was managed by Mrs. Sidell, Mr.
Sidell managed every facet of KGR's day-to-day activities.
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Rehabilitation of Everett Mill/Kunhardt Mill Properties
On May 16, 1986, Mr. Sidell submitted a historical
preservation application to the U.S. Department of the Interior
requesting certification that the Everett Mill property was a
"certified historic structure". Certification was subsequently
granted by the National Park Service (Park Service). Thereafter,
in 1989 and 1990, substantial rehabilitation, repairs, and
modifications were made to the Everett Mill property. Petitioners
claimed rehabilitation credits for the rehabilitation expenditures
in 1989 and 1990. The rehabilitation credits for these years were
allowed and are not at issue in this case.
Seeking similar tax treatment for the Kunhardt Mill property,
and concurrently with its acquisition, Mr. Sidell (on behalf of CFS
Realty Trust) instituted a major rehabilitation project with
respect to the property. After repairs and renovations had begun
on the Kunhardt Mill property, Mr. Sidell submitted a historic
preservation certification application on March 23, 1993, to the
U.S. Department of the Interior seeking a determination that the
work previously done on the property conformed with its "Standards
for Rehabilitation". After Mr. Sidell completed the rehabilitation
project, the Park Service preliminarily determined that the work
performed on the Kunhardt Mill property was eligible for "certified
rehabilitation" status. Subsequently, on September 23, 1994, Mr.
Sidell submitted a "Historic Preservation Certification Application
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Request for Certification of Completed Work" to the Park Service.
Rehabilitation costs totaling $1,701,988 in 1993 and $84,435 in
1994 were incurred with regard to the rehabilitated Kunhardt Mill
property.1 An additional $200,000 was incurred in related costs
associated with obtaining "qualified rehabilitation" status.
Petitioners' 1993 and 1994 Federal Income Tax Returns
Petitioners timely filed their 1993 and 1994 Federal income
tax returns. On their returns, petitioners reported the following
net rental income:
Property Net Rental Income/(Loss)
1993 1994
Manche/Everett Mill property $122,139 $45,936
CFS/Kunhardt Mill property 138,451 (5,335)
FLS property (42,758) 57,894
GES property (2,272) (25,315)
RMS property N/A (11,855)
Rental activities with net income 260,590 103,830
Rental activities with net loss (45,030) (42,505)
Net rental income 215,560 61,325
Petitioners also claimed rehabilitation credits of $85,361 in
1993 and $24,284 in 1994 with regard to the Kunhardt Mill property
renovations.
1
The record does not enable us to account for the
discrepancy between the stipulated amounts of rehabilitation
costs for 1993 ($1,701,988) and 1994 ($84,435) and the amounts
reflected on petitioners' Federal tax returns for 1993
($1,734,163) and 1994 ($89,725).
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Notice of Deficiency
In the notice of deficiency dated March 11, 1998, respondent
recharacterized the positive 1993 income from the Everett Mill and
Kunhardt Mill properties and the positive 1994 income from the
Everett Mill and FLS Realty Trust properties from passive to
nonpassive pursuant to section 1.469-2(f)(6), Income Tax Regs.; the
recharacterization resulted in petitioners' 1993 and 1994 taxable
income being increased by $45,030 and $42,505, respectively. In
addition, as a consequence of respondent's recharacterization,
respondent determined that petitioners' regular tax liability
allocable to all passive activities for 1993 and 1994 was
insufficient to enable them to use the rehabilitation credits
claimed for those years. See sec. 469(d)(2).
OPINION
Central to the dispute in this case is the validity of the so-
called self-rented property rule contained in section 1.469-
2(f)(6), Income Tax Regs., which provides:
Property rented to a nonpassive activity.--An amount
of the taxpayer's gross rental activity income for the
taxable year from an item of property equal to the net
rental activity income for the year from that item of
property is treated as not from a passive activity if the
property--
(i) Is rented for use in a trade or
business activity * * * in which the taxpayer
materially participates * * * for the taxable
year.
Pursuant to this rule, and by virtue of the attribution rule of
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section 1.469-4(a), Income Tax Regs.,2 respondent recharacterized
the rental income Mr. Sidell received in 1993 and 1994 from the
three properties leased to his wholly owned C corporation from
passive to nonpassive.
As a consequence of this recharacterization, petitioners were
neither able to reduce such rental income by the losses from other
rental properties nor able to utilize certain rehabilitation
credits.
Section 469 and the Self-Rented Property Rule
Pursuant to section 469(a), in general, a taxpayer is denied
both a passive activity loss and a passive activity credit for the
taxable year in which they arise. A passive activity loss is
defined as the amount by which the aggregate losses from all
passive activities exceeds the aggregate income from all passive
activities for such years. See sec. 469(d)(1). Likewise, a
passive activity credit is defined as the amount by which the sum
of all allowable credits from passive activities exceeds the
regular tax liability of the taxpayer allocable to all passive
activities. See sec. 469(d)(2).
Section 469 specifically excludes certain transactions and
2
Sec. 1.469-4(a), Income Tax Regs., provides, among
other things, that for grouping a taxpayer's trade or business
activities and rental activities for purposes of applying the
passive activity loss and credit limitations rules of sec. 469, a
taxpayer's activities include those conducted through C
corporations that are subject to sec. 469.
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activities from its purview. Where a taxpayer "materially
participates" in a trade or business, the activity is excluded from
being classified as "passive". Sec. 469(c)(1). Ultimately,
neither a passive activity loss nor a passive activity credit is
permanently disallowed. Rather, they are suspended until the
taxpayer either has offsetting passive income or disposes of his
entire interest in the passive activity. See sec. 469(b), (g).
The passive activity rules reflect Congress' concern over the
widespread use of tax shelters that allowed taxpayers to avoid
paying tax on unrelated income. See Schaefer v. Commissioner, 105
T.C. 227, 230 (1995). In large part, section 469 was intended to
"restore public confidence in the Federal tax system" by limiting
the ability of taxpayers to derive tax preferences from activities
in which they did not have a "substantial and bona fide
involvement". Adler v. United States, 32 Fed. Cl. 736, 738 (1995);
see S. Rept. 99-313, at 713 (1986), 1986-3 C.B. (Vol. 3) 1, 713-
714; see also St. Charles Inv. Co. v. Commissioner, 110 T.C. 46,
49-50 (1998). As noted previously, pursuant to section 469,
passive losses are allowed only to the extent of passive income.
Congress gave the Secretary broad authority to promulgate rules and
regulations under section 469. See Schwalbach v. Commissioner, 111
T.C. 215, 220 (1998),3 wherein this Court held that neither the
3
In Schwalbach v. Commissioner, 111 T.C. 215 (1998), the
(continued...)
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recharacterization rule of section 1.469-2(f)(6), Income Tax Regs.,
nor the attribution rule of section 1.469-4(a), Income Tax Regs.,
is invalid because of an alleged failure to comply with the
procedural notice and comment requirements of the Administrative
Procedure Act, 5 U.S.C. sec. 553(b) and (c) (1994), with respect to
section 1.469-4(a), Income Tax Regs.
It was envisioned that by promulgating regulations regarding
"related party leases or sub-leases", the Secretary would be acting
consistently with section 469. See Fransen v. United States, 82
AFTR 2d 6621, 98-2 USTC par. 50776 (E.D. La. 1998) (quoting H.
Conf. Rept. 99-841 (Vol. II), at II-146 (1986), 1986-3 C.B. (Vol.
4) 1, 147). The court in Fransen (in granting summary judgment for
the Government) upheld the Commissioner's determination that rental
income received by the taxpayer husband, an attorney, from his
3
(...continued)
taxpayer husband (Dr. Schwalbach) practiced dentistry and was
employed by a personal service corporation (Associated Dentists)
he owned equally with another dentist. Dr. Schwalbach owned a
building that he rented to Associated Dentists for use in its
dentistry practice. The taxpayers reported $50,556 in 1994 as
the net income from the rental of the building to Associated
Dentists. The taxpayers attempted to offset this income with
certain losses derived from unrelated activities, namely: (a) A
rental loss from a commercial building apparently rented to an
unrelated tenant; (b) a passive loss from an investment in an S
corporation unrelated to the dentistry practice; and (c) a
passive loss from an investment in a partnership also unrelated
to the dentistry practice. In the aggregate, the losses claimed
totaled $18,115. The Commissioner applied the self-rented
property rule and thereby disallowed the losses. We sustained
the Commissioner's determination.
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wholly owned personal service C corporation had to be
recharacterized as nonpassive because the building was rented to a
trade or business in which the taxpayer materially participated.4
In doing so, the court upheld the validity of the self-rented
property rule, citing the following portion of the preamble to
section 1.469-2T(f)(6), Temporary Income Tax Regs., 53 Fed. Reg.
5694 (Feb. 25, 1988):5
In the absence of regulations, a taxpayer
could derive passive activity gross income
from an active business in which tangible
property is used by renting the property to an
entity conducting the activity (or by causing
an entity holding the property to rent the
4
In Fransen v. United States, 82 AFTR 2d 6621, 98-2 USTC
par. 50776 (E.D. La. 1998), the taxpayer husband was the sole
shareholder of Fransen & Hardin, a personal service corporation.
The taxpayers leased a building (in which each had an undivided
one-half interest) to Fransen & Hardin. The taxpayers reported
$29,902 of net rental income which they sought to offset with
passive activity losses from other activities in the aggregate
amount of $32,606. The taxpayers argued that sec. 1.469-2(f)(6),
Income Tax Regs., "flatly contradicts the plain language of the
statute it purports to enforce: the statute deems rental activity
income passive with a minor exception, and the regulation's
allowance of recharacterization of that income as non-passive
renders the regulation invalid."
5
We note that the preamble further states:
the Conference Report accompanying the Act states that
it would be appropriate for the Service to exercise its
regulatory authority under sec. 469(l)(3) in the case
of "related party leases or sub-leases, with respect to
property used in a business activity, that have the
effect of reducing active business income and creating
passive income." H. Conf. Rept. 99-841, 99th Cong., 2d
Sess., Vol. II, at 147 (1986) [53 Fed. Reg. 5725 (Feb.
25, 1988).]
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property to the taxpayer). It would be
inconsistent with the purposes of section 469
to treat rental income as passive activity
gross income in such cases * * *
In successive attempts to define the scope of the self-rented
property rule, numerous sets of regulations were promulgated. In
both sets of temporary regulations, promulgated on February 25,
1988, and May 12, 1989, respectively, activities conducted through
a C corporation were excluded from being attributed to the
taxpayer/shareholder for purposes of determining "material
participation". See sec. 1.469-5T(f), Temporary Income Tax Regs.,
53 Fed. Reg. 5686, 5725 (Feb. 25, 1988), T.D. 8175, 1988-1 C.B.
191, 235; sec. 1.469-4T(b)(2)(ii)(B), Temporary Income Tax Regs.,
54 Fed. Reg. 20527, 20543 (May 12, 1989), T.D. 8253, 1989-1 C.B.
121.6 Pursuant to the sunset provisions of section 7805(e)(2),7 the
second set of temporary regulations (section 1.469-
4T(b)(2)(ii)(B)), expired on May 11, 1992.
On May 15, 1992, section 1.469-4, Proposed Income Tax Regs.,
57 Fed. Reg. 20802, 20804 (May 15, 1992), PS-1-89, 1992-1 C.B.
6
Proposed regulations adopting the definition of
"activity" for purposes of applying the limitations on passive
activity losses and passive activity credits as set forth in the
second set of temporary regulations were issued concurrently
(i.e., May 12, 1989) with the promulgation of the second set of
temporary regulations. See PS-001-89, 54 Fed. Reg. 20606 (May
12, 1989), 1989-1 C.B. 1057.
7
Sec. 7805(e)(2) provides: "Any temporary regulation
shall expire within 3 years after the date of issuance of such
regulation."
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1219, 1221, was promulgated. In the text of these proposed
regulations, the Secretary removed the explicit statement
prohibiting attribution from a C corporation to the corporation's
shareholders. No further specific guidance as to the Secretary's
ultimate position on this subject matter was then provided.
However, the preamble to the regulation stated that "[The proposed
regulation] propose to replace § 1.469-4T with a new § 1.469-4,
which will provide a modified definition of the term activity."
Id. at 20802.
In 1994, the proposed regulations issued in 1992 were replaced
by the final version of section 1.469-4(a), Income Tax Regs., which
included the following sentence: "A taxpayer's activities include
those conducted through C corporations that are subject to section
469, S corporations, and partnerships." Sec. 1.469-4(a), Income
Tax Regs. This represented a reversal of the Secretary's position
enunciated in the temporary regulations published in 1989. It is
worth noting that the preamble to the final regulations stated:
A commentator requested clarification on whether
activities conducted through a C corporation may be
grouped with activities not conducted through the C
corporation. The final regulations clarify that in
determining whether a taxpayer materially or
significantly participates in an activity, a taxpayer may
group that activity with activities conducted through C
corporations that are subject to section 469 (that is,
personal service and closely held C corporations). [59
Fed. Reg. 50485 (Oct. 4, 1994), T.D. 8565, 1994-2 C.B. at
82.]
See Schwalbach v. Commissioner, supra at 225.
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The final regulations were generally made effective for
taxable years beginning after May 10, 1992. See sec. 1.469-
11(a)(1), Income Tax Regs. However, section 1.469-11(b)(1), Income
Tax Regs., provides transitional relief for taxable years that end
after May 10, 1992, and begin before October 4, 1994. Under the
transitional rules, taxpayers are allowed to determine their tax
liability in accordance with the proposed regulations promulgated
in 1992. See sec. 1.469-11(b)(1), Income Tax Regs.
Positions of the Parties
The parties disagree as to the proper characterization of the
rental income from the Everett Mill, Kunhardt Mill, and FLS Realty
Trust properties.
Petitioners seek to have the income Mr. Sidell received in
1993 and 1994 from the rental of these properties characterized as
income from a passive activity in order to use (1) passive losses
from the rental of other properties, and (2) rehabilitation credits
(claimed on their 1993 and 1994 returns) with respect to
renovations made to the Kunhardt Mill property.
Respondent relies on the self-rented property rule contained
in section 1.469-2(f)(6), Income Tax Regs., to support his
characterization of the rental income from these properties as
nonpassive (or active) income. Respondent maintains that pursuant
to section 469(l), the Secretary had the authority to prescribe
regulations necessary or appropriate to carry out the provisions of
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section 469, including regulations requiring net income or gain
from a limited partnership or other passive activity to be treated
as not from a passive activity. See sec. 469(l)(3). Continuing,
respondent posits that pursuant to that authority, the Secretary
properly promulgated the self-rented property rule, which
recharacterizes rental income as nonpassive (or active) income when
a taxpayer rents property to an activity in which the taxpayer
materially participates.
Petitioners challenge respondent's determinations, making
three arguments. First, petitioners assert that section 1.469-
2(f)(6), Income Tax Regs., is invalid insofar as it recharacterizes
rental income received from a C corporation from passive to
nonpassive (hereinafter this argument is referred to as
petitioners' validity argument). Petitioners maintain that in
order for the self-rented property rule to apply, (1) the property
must be rented for use in a trade or business activity in which the
taxpayer materially participates, and (2) the activities of a C
corporation cannot be attributed to a taxpayer/shareholder in
determining whether that taxpayer has materially participated in
the corporation's business activity. According to petitioners,
application of section 1.469-2(f)(6), Income Tax Regs., to a C
corporation is contrary to the plain language, origin, and purpose
of the passive activity rules.
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Second, petitioners argue that even if the application of the
self-rented rule to a closely held C corporation is deemed valid,
attribution/recharacterization cannot apply to any taxable year
beginning before October 4, 1994, when the final regulations
(discussed infra) were adopted. Thus, petitioners contend that
they may determine their 1993 and 1994 tax liability under the
proposed regulations promulgated in 1992 (section 1.469-4, Proposed
Income Tax Regs., 57 Fed. Reg. 20802 (May 15, 1982), PS-1-89, 1992-
1 C.B. 1219), thereby avoiding the self-rented property rule and
rendering the rental income in question as passive (hereinafter
this argument is referred to as petitioners' proposed regulations
argument). Respondent acknowledges that under the transitional
relief provided in section 1.469-11(b), Income Tax Regs., taxpayers
are permitted to determine their tax liability in accordance with
the 1992 proposed regulations for taxable years ending after May
10, 1992, and beginning before October 4, 1994. Nevertheless,
respondent asserts that under those proposed regulations
petitioners' 1993 and 1994 tax liability would be the same as under
the final regulations because under the proposed regulations a C
corporation's activities would be attributed to its shareholders,
resulting in the rental income in question being characterized as
nonpassive.
Finally, petitioners assert that, assuming arguendo the rental
income from the Everett Mill, Kunhardt Mill, and FLS Realty Trust
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properties is properly recharacterized as nonpassive (or active)
income under section 1.469-2(f)(6), Income Tax Regs., nonetheless,
respondent was without authority to disallow the claimed
rehabilitation credit (hereinafter this argument is referred to as
petitioners' credit argument). According to petitioners, denial of
the rehabilitation credit defeats the express legislative policy
goal underlying the enactment of section 47; namely, to preserve
historic landmarks and to provide an economic stimulus to areas
susceptible to abandonment.
Petitioners maintain a distinction between recharacterizing
income, on the one hand, and recharacterizing the underlying
activity, on the other. In this regard, petitioners contend that
section 1.469-2(f)(6), Income Tax Regs., authorizes respondent only
to recharacterize income, not to disallow the section 47 credit.
Respondent counters by asserting that once petitioners' net rental
income is recharacterized as nonpassive, the limitation on passive
activity credits (rather than section 1.469-2(f)(6), Income Tax
Regs.) mechanically disallows the rehabilitation credit.
Standard of Review of Section 1.469-2(f)(6), Income Tax Regs.
Petitioners invite us to invalidate a portion of a regulation,
section 1.496-2(f)(6), Income Tax Regs. This we do only in the
gravest of circumstances. A regulation must be sustained unless
unreasonable, plainly inconsistent with the Internal Revenue Code,
arbitrary, or capricious. See Commissioner v. South Tex. Lumber
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Co., 333 U.S. 496, 501 (1948); Tate & Lyle, Inc. v. Commissioner,
103 T.C. 656 (1994), revd. on other grounds 87 F.3d 99 (3d Cir.
1996); Jablonski v. Commissioner, T.C. Memo. 1998-396. Ultimately,
the validity of a regulation is determined by its reasonableness
and whether it harmonizes with the plain language of the statute,
its origin, and its purpose. See National Muffler Dealers
Association, Inc. v. United States, 440 U.S. 472, 477 (1979); Coca
Cola Co. & Includible Subs. v. Commissioner, 106 T.C. 1, 19
(1996); Estate of Bullard v. Commissioner, 87 T.C. 261, 269 (1986).
The starting point in determining the deference given to a
regulation is whether the regulation is legislative or interpretive
in nature. See Mordkin v. Commissioner, T.C. Memo. 1996-187
(citing Dresser Indus., Inc. v. Commissioner, 911 F.2d 1128, 1137-
38 (5th Cir. 1990), affg. in part and revg. in part 92 T.C. 1276
(1989)). A legislative regulation is one that is issued under a
specific grant of authority to define a term or prescribe a method
of executing a statutory provision. See id. An interpretive
regulation is one that is promulgated under the general authority
of section 7805(a). See id.
Congress authorized the Secretary to promulgate "such
regulations as may be necessary or appropriate to carry out
provisions of [sec. 469] * * * which specify what constitutes an
activity, material participation, or active participation" for
purposes of section 469, and "requiring net income or gain from a
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limited partnership or other passive activity to be treated as not
from a passive activity." Sec. 469(l)(1), (3) (emphasis added).
This Court has already determined that section 1.469-2(f)(6),
Income Tax Regs., is a legislative regulation promulgated under
section 469(l). See Schwalbach v. Commissioner 111 T.C. at 220-
221. Accordingly, we give that regulation the highest level of
judicial deference. See Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843-844 (1984); Fransen v.
United States, 82 AFTR 2d 6621, 98-2 USTC par. 50776 (E.D. La.
1998); Schwalbach v. Commissioner, supra; Jablonski v.
Commissioner, supra.
Analysis of Parties' Arguments
Petitioners maintain in their validity argument that the self-
rented property rule cannot apply to reclassify their rental income
as nonpassive because KGR's business activities cannot be
attributed to Mr. Sidell for purposes of determining "material
participation". We disagree. Mr. Sidell's transaction with KGR is
the epitome of a self-renting transaction. Mr. Sidell is the sole
shareholder of KGR and manages its operations in various
capacities.8 At the same time that Mr. Sidell materially
8
Petitioners acknowledge that Mr. Sidell materially
participated in KGR. However, they argue that there is a
distinction between materially participating in KGR and
materially participating in the activities of KGR. Petitioners
cite no authority to support this distinction. Regardless of any
(continued...)
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participated in KGR's operations, through his grantor trusts he
rented several pieces of real property to KGR. KGR used the leased
property in conducting its apparel business. By being in effect
both the lessor and lessee of the properties in question, Mr.
Sidell established the amounts of rent, and, unless the resulting
rental income is deemed nonpassive, he could have used all of his
passive losses to offset that income.
Moreover, there is ample legislative history and proper
delegation under section 469(l) supporting respondent's attribution
of KGR's activities to Mr. Sidell. Specifically, Congress
authorized the Secretary to promulgate regulations that specify
what constitutes an "activity" and what constitutes material
participation. Further, Congress permitted the Secretary to
promulgate regulations that permitted recharacterization of "net
income or gain from a limited partnership or other passive activity
as [being] not from a passive activity." Sec. 469(l)(1), (3). We
believe "other passive activity" encompasses activities of a C
corporation engaged in a trade or business.
8
(...continued)
distinction, Mr. Sidell's day-to-day management of KGR's only
line of business would constitute material participation in all
the activities of KGR, which consequently would trigger the self-
rented property rule. See sec. 1.469-5T(a), Temporary Income Tax
Regs., 53 Fed. Reg. 5686, 5700 (Feb. 25, 1988), T.D. 8175, 1988-1
C.B. 191, 234.
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In enacting section 469, Congress was specifically concerned
with both related party leases and the possibility of abuse by the
formation of closely held corporations. See, e.g., sec. 469(e); S.
Rept. 99-313, at 714 (1986), 1986-3 C.B. (Vol. 3) 1, 713-714; H.
Conf. Rept. 99-841 (Vol. II), at II-147 (1986), 1986-3 C.B. (Vol.
4) 1, 147; 53 Fed. Reg. 5686, 5694 (Feb. 25 1988). On brief,
petitioners assert that no potential for abuse exists in this case
because they own no tax shelters. They claim that their Lawrence,
Massachussetts, properties are the only rental properties they have
and that these properties are either contiguous to or located
across the street from each other. Moreover, petitioners maintain
that ownership of the real properties was separated from the
business of KGR for valid business reasons--to insulate the
properties from potential liabilities arising from the operation of
KGR's business and to insulate KGR from potential liabilities
arising from the ownership of the property. In addressing these
assertions, respondent states on brief:
The petitioners' assertion that no abuse potential
is present in the present case because they own no "tax
shelters" begs the question. Furthermore, the
unquestioned legitimate business needs that prompted the
purchases of the various properties that caused
petitioners to incur losses do not mean that the
petitioners' case is not the sort against which the
strictures of section 469 should be aimed. * * *
The self-rental rule as a matter of administrative
convenience is a bright line rule. The rule does not
look to a taxpayer's motives in structuring transactions.
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We are persuaded by respondent's responses to petitioners'
assertions.
Consequently, we conclude that the self-rented property rule
in section 1.469-2(f)(6), Income Tax Regs., is valid pursuant to
the Secretary's delegated regulation-making authority.
We now turn our attention to petitioners' proposed regulation
argument. The taxpayers in Connor v. Commissioner, T.C. Memo.
1999-185, advanced a similar argument.9 We rejected the taxpayers'
argument in that case and for the reasons expressed both therein
and hereinafter do so in this case.
As in Connor, petitioners herein assert that the proposed
regulations promulgated in 1992 did not specifically disavow the
provisions in the temporary regulations issued in 1989, which
provided that "a taxpayer's activities do not include operations
9
In Connor v. Commissioner, T.C. Memo. 1999-185, the
taxpayer husband practiced dentistry and was employed by a
professional service corporation in which he was a shareholder.
(Until Oct. 31, 1993, the corporation was known as Michael F.
Connor, D.D.S., S.C.; after that date, the corporation was known
as Drs. Connor & McKeever, S.C.). The professional service
corporation leased the building (the Rochester Street building)
in which it conducted its business activities from taxpayer wife.
The taxpayers reported net income from the rental of the
Rochester Street building as $10,503 and $15,937 in 1993 and
1994, respectively. They reported losses from the rental of
another property and losses from a partnership, which they used
to offset the rental income from the Rochester Street building.
The Commissioner determined that the rental profits from the
Rochester Street building constituted nonpassive income and
consequently could not be used to offset the taxpayers' passive
losses. We sustained the Commissioner's determination.
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that a taxpayer conducts through one or more entities (other than
pass through entities)."10 Sec. 1.469-4T(b)(2)(ii)(B), Temporary
Income Tax Regs., 54 Fed. Reg. 20543 (May 12, 1989). Accordingly,
petitioners maintain:
It is abundantly clear that Proposed Regulation sec.
1.469-4 was not intended to, and in fact did not change
the rule from the * * * Temporary Regulations that a
taxpayer's activities did not include those conducted
through a C corporation. Consequently, it is clear that
under Proposed Regulation sec. 1.469-4, the self rented
property rule does not apply to the rental of property to
a C corporation.
Petitioners' proposed regulation argument is founded upon the
transitional relief set forth in section 1.469-11(b)(1), Income Tax
Regs., which, as applicable herein, permits petitioners to
determine their tax liability for 1993 and 1994 using the rules set
forth in the proposed regulations promulgated in 1992 (rather than
the final regulations). As previously stated, these proposed
10
At trial, petitioners introduced over respondent's
objection a multitude of Internal Revenue Service internal
documents and memoranda purporting to show intent on the part of
the drafters of sec. 1.469-4, Proposed Income Tax Regs., 57 Fed.
Reg. 20802 (May 15, 1992), to maintain the exclusion on
attribution of activities from C corporations. We find these
documents to be of little probative value inasmuch as they do not
state the final position of either the Commissioner or the
Secretary. See Connecticut Gen. Life Ins. Co. v. Commissioner,
109 T.C. 100, 110 (1997), affd. 177 F.3d 136 (3d Cir. 1999).
Normally, such internal memoranda are not binding on the
Secretary and cannot be used to determine intent. See id. at
109-111 (observing that material from administrative work files
generally reflects only personal views of various Government
representatives, not official statements of the Commissioner or
the Secretary); Armco, Inc. v. Commissioner, 87 T.C. 865, 867-868
(1986).
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regulations are silent as to whether the activities of a C
corporation are attributable to the corporation's shareholders.
Contrary to petitioners' assertion, the silence of the proposed
regulations on this subject cannot be equated to providing
petitioners with relief from the attribution rules set forth in the
final regulations. Simply put, the proposed regulations' silence
means nothing, not something. Moreover, the rule of nonattribution
set forth in the temporary regulations issued in 1989 is not
relevant because the relief afforded petitioners under the
transitional rules is based solely on the rules set forth in the
proposed regulations of 1992, not in the temporary regulations.
We are mindful that:
(1) The 1992 proposed regulations eliminated the specific
statement found in section 1.469-4T(b)(2)(ii)(B), Temporary Income
Tax Regs., 54 Fed. Reg. 20527, 20543 (May 12, 1989), T.D. 8253,
1989-1 C.B. 121, 139 (the second set of temporary regulations),
which stated:
For purposes of applying section 469 and the
regulations thereunder, a taxpayer's activities do not
include operations that the taxpayer conducts through one
or more entities (other than passthrough entities).
(2) The preamble to the 1992 proposed regulations states:
This document proposes to replace section
1.469-4T with a new section 1.469-4, which
will provide a modified definition of the term
activity.
and
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(3) The preamble to the final regulations, 59 Fed. Reg.
50485, 50486 (Oct. 4, 1994), T.D. 8565, 1994-2 C.B. 81, 83, states:
The final regulations clarify that in determining
whether a taxpayer materially or significantly
participates in an activity, a taxpayer may group that
activity with activities conducted through C corporations
that are subject to section 469 (that is, personal
service and closely held C corporations). [Emphasis
added.]
It is inferable from the elimination of the aforementioned
statement in the temporary regulations of 1989 and the preamble to
the proposed regulations of 1992 that the Secretary did not intend
in those proposed regulations to adhere to the position previously
taken in the temporary regulations. As we noted in Schwalbach v.
Commissioner, supra, there is nothing in the 1992 proposed
regulations that would lead us to believe that the Secretary was
proposing to retain the rule set forth in the 1989 temporary
regulations that the activities of a C corporation are not to be
attributable to the corporation's shareholders. See Schwalbach v.
Commissioner, 111 T.C. at 228.
Because the proposed regulations are silent as to whether the
activities of a C corporation are or are not attributable to the
corporation's shareholders, the 1992 proposed regulations are of no
benefit to petitioners in determining their 1993 and 1994 tax
liability.
Finally, we turn our attention to petitioners' credit
argument. A passive activity credit is defined as "the amount * *
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* by which * * * the sum of the credits from all passive activities
allowable for the taxable year under subpart D of part IV of
subchapter A * * * exceeds the regular tax liability of the
taxpayer for the taxable year allocable to all passive activities."
Sec. 469(d)(2) (emphasis added). The rehabilitation credit is a
credit allowable under subpart D of part IV of subchapter A. See
secs. 46, 38(b)(1).
In determining the existence and amount of a passive activity
credit, the regular tax liability allocable to all passive
activities must be ascertained. The regular tax liability
allocable to passive activities is defined in section 1.469-3T(d),
Temporary Income Tax Regs., 53 Fed. Reg. 5724 (Feb. 25, 1988), as
follows:
(d) Regular tax liability allocable to
passive activities--(1) In general.--For
purposes of paragraph (a)(2) of this section,
the taxpayer's regular tax liability allocable
to all passive activities for the taxable year
is the excess (if any) of --
(i) The taxpayer's regular tax
liability for such taxable year;
over
(ii) The amount of such regular
tax liability determined by reducing
the taxpayer's taxable income for
such year by the excess (if any) of
the taxpayer's passive activity
gross income for such year over the
taxpayer's passive activity
deductions for such year.
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Thus, in order to utilize a tax credit allocated to a passive
activity, a taxpayer must have passive income in excess of passive
deductions. See sec. 1.469-3T(g), Examples (2) and (3), Temporary
Income Tax Regs., 53 Fed. Reg. 5725 (Feb. 25, 1988). Because
petitioners' net rental income has been recharacterized as
nonpassive for 1993 and 1994, petitioners have no passive income.
Without passive income, petitioners have no "regular tax liability
allocable to passive activities." Any rehabilitation credit would
be in excess of such regular tax liability. Accordingly, we hold
that respondent properly disallowed the rehabilitation credit for
the years in issue.
In reaching our conclusions herein, we have considered all
other arguments presented and, to the extent not discussed above,
find them to be irrelevant or without merit.
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To reflect the foregoing and respondent's concession,
Decision with respect to
the deficiencies for 1993 and
1994 will be entered for
respondent; decision with
respect to the accuracy-related
penalty under section 6662(a)
with respect to 1994 will be
entered for petitioners.