Rights-to-Manage Question Poses Challenges in Section 469 Proposals

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The most complicated question the taxpayer will have to answer surrounding the latest passive activity loss guidance is whether that taxpayer has the rights to manage the entity, Michael Grace, with Milbank, Tweed, Hadely and McCloy, tells Bloomberg BNA. The November 2011 proposed regulations (REG-109369-10) are favorable to the taxpayer, he says, but in answering the rights-to-manage question, one will have to look at the applicable state limited liability corporation statutes and the operating agreement of the LLC in question.

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