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942 (4th Cir. 1991), cited by petitioners, offers an example of a
situation where multiple structures were performing their logical
and intended function in support of a residence and, hence,
similarly emphasizes the importance of normal residential use.
Still further illustrating the type of use necessary to
qualify a structure for section 1034 purposes, the court in
United States v. Sheahan, 323 F.2d at 387-388, declared even
planting shrubbery, putting up a mailbox, moving in boxes of
belongings, and occasionally eating lunch at a newly constructed
house to be only “token ‘use’” insufficient to satisfy the
statutory requirement that construction be used as a residence.
Likewise, in Bayley v. Commissioner, 35 T.C. at 295-296, the
Court refused to permit section 1034 to be used, despite the
taxpayers’ having moved in some furniture, where “the rather
extensive state of incompletion of the new residence-–no water or
sewerage connections, no appliances in the kitchen, and lights
and flooring only in minimal quantities–-effectively prevented
petitioners from living in the new residence.” The Court in
Bayley particularly emphasized the taxpayers’ failure to sleep in
the new residence as indicative of the fact that they had not
begun to use and occupy it within the meaning of the statute.
See id. at 296.
Here, petitioners’ new structure stood in a parallel state
of incompletion at the end of 1993 when the statutory period
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