8
Petitioners also argue that the claimed allocation
percentage is proper based on the amount of time that the rooms
were purportedly devoted to use in petitioner's legal practice.
In this respect, petitioners rely on Neilson v. Commissioner, 94
T.C. 1 (1990), and Gino v. Commissioner, 60 T.C. 304 (1973),
revd. 538 F.2d 833 (9th Cir. 1976), wherein the Court compared
the number of hours the space in issue was used for business
purposes as opposed to the number of hours it was used for other
purposes. Petitioners' reliance is misplaced. The facts in
Neilson v. Commissioner, supra, involved a day-care operation in
the taxpayers' home, and, thus, section 280A(c)(4) applied.
Petitioners do not argue, nor would we agree, that section
280A(c)(4) applies in these circumstances. The second case, Gino
v. Commissioner, supra, was decided prior to the enactment of
section 280A.
Petitioner argues that the portion of his home allocable to
his business use included the dining room. Petitioners contend
that any use of the dining room "after hours" does not negate the
use of the room for business purposes because personal activities
may go on at outside law offices after hours. Respondent argues
that petitioners have failed to prove that the area was used
exclusively for business purposes, and, therefore, cannot
allocate the expenses to business use.
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