Frank Shih, Jr. - Page 11

                                       - 11 -                                         
          Commissioner, T.C. Memo. 1981-632 (section 280A did not apply to            
          entire building where upper and lower portions were determined to           
          be separate and distinct dwelling units).  However, there were no           
          separate and distinct dwelling units within the San Bruno                   
          residence during 1991.  Rather, as reflected in petitioner's                
          advertisements, the San Bruno residence consisted of a single               
          dwelling unit that was shared by petitioner and "housemate"                 
          tenants during 1991.                                                        
               Petitioner's alternative argument is similar to the                    
          taxpayer's argument that we rejected in Russell v. Commissioner,            
          T.C. Memo. 1994-96, affd. without published opinion 76 F.3d 388             
          (9th Cir. 1995).  In Russell we found that the taxpayer's house             
          consisted of a single dwelling unit even though the taxpayer                
          essentially occupied only the master bedroom and bathroom, and              
          the rest of the house was rented out to tenants unrelated to the            
          taxpayer.  There are no meaningful distinctions between this case           
          and Russell.  Consequently, for the reasons expressed in Russell,           
          we hold that for purposes of section 280A the San Bruno residence           
          must be treated as a single dwelling unit and proceed to consider           
          petitioner's primary argument on that basis.                                
               Petitioner's primary argument, which deals with the                    
          application of section 280A(d)(4), assumes that renting, or                 
          holding for rent at fair rental value, all four bedrooms in the             
          San Bruno residence equates to renting, or holding for rent at              
          fair rental value, the San Bruno residence as a whole.  Unless              




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011