-9-
Petitioners bear the burden of proving that they meet the
requirements of section 121. Rule 142(a).
B. Use of the W. 22d property
Generally, whether property is used as a principal residence
depends on the facts and circumstances. Sec. 1.1034-1(c)(3)(i),
Income Tax Regs. Petitioners submitted loan applications in 1990
and 1991 in which they stated how long they had lived at the W.
22d property. The information on both forms is ambiguous, but it
tends to suggest they first occupied it in 1990. Despite this,
there is more persuasive evidence that petitioners moved into the
W. 22d property by early August 1989 and lived there until they
sold it on October 30, 1992. Therefore, we find that petitioners
used the W. 22d property for more than 3 years. However, as
discussed next, to qualify for the exclusion under section 121,
petitioners must also have owned the W. 22d property for more
than 3 years.
C. Ownership of the W. 22d Property
When a sale is complete for Federal tax purposes depends on
all the facts and circumstances; no single factor controls. Derr
v. Commissioner, 77 T.C. 708, 724 (1981); Baird v. Commissioner,
68 T.C. 115, 124 (1977). A sale of real property is generally
complete upon the earlier of the transfer of legal title or the
assumption of the benefits and burdens of ownership by the buyer.
Dettmers v. Commissioner, 430 F.2d 1019, 1023 (6th Cir. 1970),
affg. 51 T.C. 290 (1968); Derr v. Commissioner, supra; Baird v.
Commissioner, supra.
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