Gary B. and Kathleen Mitchell - Page 8

                                        - 8 -                                         
          residence prior to the June 21, 1990, deadline.  Respondent,                
          relying on utility and telephone usage at the temporary townhouse           
          and the replacement or principal residence (Fairway), contends              
          that the record does not support petitioners' contentions and               
          proffered testimony.                                                        
               Section 1.1034-1(c)(3)(i), Income Tax Regs., contains the              
          following standard for use of a principal residence:                        
               Whether or not property is used by the taxpayer as his                 
               residence, and whether or not property is used by the                  
               taxpayer as his principal residence (in the case of a                  
               taxpayer using more than one property as a residence),                 
               depends upon all the facts and circumstances in each                   
               case, including the good faith of the taxpayer.  * * *                 
          Section 1.1034-1(d)(1), Income Tax Regs., explains further that             
               if the taxpayer, during the period within which the                    
               purchase and use of the new residence must be made in                  
               order to have any gain on the sale of the old residence                
               not recognized under this section, purchases more than                 
               one property which is used by him as his principal                     
               residence * * *, only the last of such properties shall                
               be considered a new residence * * *                                    
               Petitioners bear the burden of showing their entitlement to            
          the benefits of section 1034 by proving they have satisfied all             
          of the section's requirements.  Thomas v. Commissioner, 92 T.C.             
          206, 242 (1989) (citing  Welch v. Helvering, 290 U.S. 111 (1933)            
          and Rule 142(a)).  In particular, petitioners must show here that           
          they used the Fairway residence as their principal residence.  In           
          that regard, we said in Stolk v. Commissioner, 40 T.C. 345, 353,            
          355 (1963), affd. 326 F.2d 760 (2d Cir. 1964):                              
               The elements of residence are the fact of abode and the                
               intention of remaining, and the concept of residence is                




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  Next

Last modified: May 25, 2011