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Since inception of the Treasury regulations issued under Internal Revenue Code Section 469, Section 1.469-8 regarding the material participation of trusts has been reserved, offering no official guidance on if, when or how a trust would materially participate in a trade or business sufficient to categorize the trust’s income as active. With only two cases[1] of note on this issue, several inconsistent technical advice memoranda, and increased focus on the material participation test as a result of the adoption of the net investment income (NII) tax under Internal Revenue Code Section 1411, the American Bar Association Tax Section issued a report earlier this year with recommendations to the commissioner of the Internal Revenue Service to adopt guidance under Treas. Reg. §1.469-8 for when a trust or estate can materially participate.

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