James D. Schlicher - Page 13

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               In support of her position that petitioner used only 1 acre            
          of the Clayton property as his residence, respondent heavily                
          relies on Beckwith v. Commissioner, T.C. Memo. 1964-254.  We do             
          not agree that Beckwith is controlling in light of the facts of             
          the instant case.                                                           
               In Beckwith, the taxpayer purchased approximately 80 acres             
          of land, built a residence on the property, and asserted that the           
          portion of the land not used for business must necessarily be               
          regarded as his residence.  Respondent contends that the facts in           
          Beckwith, are closely analogous to the facts at issue here.  We             
          disagree.  In Beckwith, nearly 40 of the 80 acres purchased by              
          the taxpayer were held in reserve under a soil conservation                 
          contract with the U.S. Department of Agriculture and                        
          approximately 28 acres consisted of marshland and some wooded               
          area.  With respect to the land held in reserve by the United               
          States, we found that the taxpayer's residence could not                    
          reasonably be said to include these acres.                                  
               In the case at bar, however, there is no restriction on                
          petitioner's right to use all 51 acres of his land, except to the           
          extent that he is precluded from building residential structures            
          on the flood plain because of its archeological importance.                 
          Petitioner may build, and has indeed built, agricultural                    
          structures on such property.  Moreover, petitioner uses a portion           
          of this area for his boarding and breeding business.  With                  
          respect to the wooded area in Beckwith, we held that this was not           

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