Phillip Lee Allen and Carolyn F. Allen - Page 11

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            Petitioners have shown that the funds received from Allstate were                            
            used, in substantial part, to restore their property to the                                  
            original condition and though some enhancements were made, in a                              
            relative sense, they were de minimis.  Petitioners’ actions                                  
            fulfill the use of funds requirement of section 1033.  See Davis                             
            v. United States, 589 F.2d 446 (9th Cir. 1979).                                              
                  Because petitioners have met both requirements of section                              
            1033 and have chosen not to recognize the $130,000 payment                                   
            received from Allstate in settlement of their homeowners’                                    
            insurance claim as taxable income, we hold for petitioners.  Due                             
            to our holding on the income tax deficiency, the penalty is not                              
            applicable.                                                                                  
                  In light of the foregoing,                                                             

                                                       Decision will be entered for                      
                                                 petitioners.                                            



















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