Henry Allen Waters - Page 7

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          purchaser.  Dettmers v. Commissioner, 430 F.2d 1019, 1023 (6th              
          Cir. 1970), affg. 51 T.C. 290 (1968); Derr v. Commissioner, supra           
          at 724; Baird v. Commissioner, supra at 124.                                
               In California, a grant deed evidencing the transfer of title           
          takes effect upon delivery by the grantor, or, if placed in                 
          escrow, upon performance of the prescribed conditions and                   
          delivery by the depositary.  Cal. Civ. Code secs. 1054, 1057                
          (West 1982); Blumenthal v. Liebman, 240 P.2d 699, 703 (Cal. Dist.           
          Ct. App. 1952).  In the present case, we agree with respondent              
          that the relevant property transfers occurred on August 1, 1989,            
          and August 7, 1991, the respective settlement dates of the                  
          transfers.  Although petitioner contends that he made a deposit             
          on his new residence and moved into the home in July 1991, he has           
          not otherwise shown that he assumed the burdens/risks of                    
          ownership prior to the passage of title on August 7, 1991.4  From           
          these facts, we are compelled to conclude that petitioner failed            
          to meet the statutory requirements of section 1034.                         
               While we sympathize with petitioner's plight--he undoubtedly           
          intended and diligently attempted to purchase a new residence               
          within the 2-year period required for the nonrecognition of gain            
          from the sale of his old residence--we are powerless to move a              
          line Congress has drawn.  We hold that petitioner has failed to             



               4 Petitioner has not shown, for example, that he was                   
          responsible for and/or paid property taxes on his new home, or              
          that he maintained insurance on the property, for any period                
          prior to the date of settlement.                                            


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