-6- principal residence within 2 years of the sale of the former residence. Respondent argues that the Montclair property was purchased by Mr. De Ocampo's parents, not petitioners, and therefore section 1034 is not applicable. Section 1034 has been strictly construed. See, e.g., Boesel v. Commissioner, 65 T.C. 378, 390 (1975); Lokan v. Commissioner, T.C. Memo. 1979-380; Bazzell v. Commissioner, T.C. Memo. 1967-101. Maintaining continuity of title is the key to receiving nonrecognition treatment under section 1034. Starker v. United States, 602 F.2d 1341, 1351 (9th Cir. 1979); Allied Marine Sys., Inc. v. Commissioner, T.C. Memo. 1997-101; see also Edmondson v. Commissioner, T.C. Memo. 1996-393. In Marcello v. Commissioner, 380 F.2d 499 (5th Cir. 1967), affg. on this issue T.C. Memo. 1964- 299, the taxpayers, husband and wife, sold their principal residence and moved into a new principal residence, legal title to which was acquired by the husband's mother. In an unrecorded affidavit, the mother stated that she held title to the residence for convenience only, that the residence was purchased by and for her son, who paid the purchase price, and that she would convey the property to him whenever required to do so, for no consideration. The mother held the mortgage on the property, but her son made the payments. The Court of Appeals for the Fifth Circuit agreed with this Court that the taxpayers did not qualify under section 1034 for deferral of gain realized from the sale of their formerPage: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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