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thus, cannot claim the benefit of section 1034 gain rollover.
Petitioner contends that a "partner in a partnership may claim an
exclusion of the recognition of gain on the sale of property
titled to the partnership and used by a partner as his personal
residence."
Petitioner points to Lewis Testamentary Trust B v.
Commissioner, 83 T.C. 246 (1984), to support his position. Lewis
stands for the proposition that an income beneficiary's use of a
house owned by the trust cannot be imputed to the trust in
determining the trust's tax liability under section 57(a),
defining tax preferences for purposes of the minimum tax. In
that case, the Court therefore concluded that the "principal
residence" exclusion of section 57(a)(9)(D) was unavailable to
the trust. Lewis does not strengthen petitioner's position.
Petitioner also relies on Davies v. Commissioner, 54 T.C.
170, 176 (1970), arguing that his failing to pay rents and
Solomons' failing to depreciate the house indicate that the
Solomons house was a residence and not business property.
Petitioner's syllogism fails. The taxpayer's loss in Davies,
based on a conclusion that the property in question was business
property, does not suggest an opposite result here. The Solomons
property (whether depreciated or not) was from time to time put
to business uses. Neither the Court's dictum in Davies v.
Commissioner, supra at 175, nor section 704(c), cited by
petitioner, relating to property contributed to a partnership,
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