James B. and Joan E. Murtaugh - Page 21

                                       - 21 -                                         
          B'Mae's was a good choice to manage the property.  B'Mae's,                 
          unlike an independent manager, could spread the costs of                    
          advertisement among other suite owners and B'Mae's itself.                  
          Moreover, B'Mae's, unlike an independent manager, might receive             
          unsolicited telephone calls about the availability of suites in             
          the B'Mae's Resort.  Finally, B'Mae's, unlike an independent                
          manager, had access to and familiarity with the property for                
          purposes of repairs and maintenance of the timeshares.  We do not           
          believe that the conflict of interest suggested by respondent               
          affects our finding that B'Mae's was petitioner's agent.                    
               On the other hand, the cases on which respondent relies,               
          Grier and Balsamo v. Commissioner, T.C. Memo. 1987-477, are                 
          distinguishable from this case.  In Grier, the taxpayer, a                  
          securities adviser and salesman, inherited a house that had                 
          previously been rented to a single tenant for a period of years,            
          and the taxpayer continued this arrangement until he sold the               
          house approximately 12 years later.  During the taxpayer's                  
          ownership, he or his agent performed the necessary maintenance on           
          the house.  The District Court held that the house was not                  
          property used in a trade or business.  In distinguishing Gilford,           
          the District Court stated that the most important issue was "the            
          extent of the regular and continuous activity of management                 
          involved" in the "multiple rental" in that case, which was not              
          present in Grier itself, which involved a one-family house.                 
          Grier v. United States, 120 F.Supp. 395, 398 (D. Conn. 1954),               




Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Next

Last modified: May 25, 2011