Joseph Francis Cunningham - Page 9

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               We agree with respondent that all floors of the building               
          constitute petitioner's "dwelling unit".  Clearly, the upper                
          level of the building, which petitioner utilized as his                     
          residence, is a dwelling unit.  The building contains no                    
          permanent partitions or walls that physically or functionally               
          separate the area used by the art gallery from the areas used as            
          petitioner's residence.  Various photographs introduced into                
          evidence depicting different interior areas of the building                 
          reveal nothing that suggests that the three levels of the                   
          building were anything other than one integrated unit.  Customers           
          who entered the art gallery had free access to the foyer where              
          the stairway to the basement was located.  Allowing customers to            
          have access to the foyer area also gave them access to the                  
          building's upper level, or petitioner's residence.  Petitioner              
          had to pass through the foyer in order to gain access to his                
          residence.  He had to use the same stairway that customers used             
          when he descended to the laundry room in the basement.                      
               We see no meaningful distinction between the facts of this             
          case and those involved in Burkhart v. Commissioner, T.C. Memo.             
          1989-417.  In that case the taxpayer used the basement portion of           
          his residence exclusively for business purposes.  In deciding               
          that the entire structure constituted the dwelling unit the Court           
          stated:                                                                     
               The basement became both a physical and functional part                
               of the building. * * *  The costs of maintaining the                   
               basement in terms of taxes, interest, utilities and                    




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