- 18 - 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,Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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