Joseph Francis Cunningham - Page 7

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          Consistent with her examinations of FOTA, respondent reduced the            
          losses claimed by petitioner from FOTA by $17,101 and $21,891 for           
          the years 1987 and 1989, respectively, and increased the losses             
          claimed by $24,070 for the year 1988.                                       
                                      OPINION                                        
               Section 162(a) generally allows a deduction for all ordinary           
          and necessary expenses paid or incurred during the taxable yearin           
          carrying on a trade or business.  Section 280A(a) provides that             
          in the case of a taxpayer who is an individual or an S                      
          corporation, no deduction otherwise allowable under chapter 1               
          (Normal Taxes and Surtaxes) shall be allowed with respect to the            
          use of a dwelling unit which is used by the taxpayer during the             
          taxable year as a residence.  The term "dwelling unit" includes a           
          house, apartment, condominium, or similar property, and all                 
          structures or other property appurtenant to such dwelling unit.             
          Sec. 280A(f)(1).                                                            
               Section 280A(c)(1) provides an exception to section 280A(a)            
          stating that subsection (a) shall not apply to any item to the              
          extent such item is allocable to a portion of the dwelling unit             
          which is exclusively used on a regular basis as the principal               
          place of business for any trade or business of the taxpayer.                
          Sec. 280A(c)(1)(A).4  Section 280A(c)(5) provides a limitation on           

          4In her brief, respondent raised an argument that petitioner                
          failed to satisfy the "exclusive use" test with respect to the              
          basement level of the building.  The argument is inconsistent               
          with allocations expressly and implicitly made in respondent's              




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