- 8 - to the benefit of deferring gain recognition. Explicit and unambiguous judicial language such as the following has left little room for question: “for property to be ‘used by the taxpayer as his principal residence’ within the meaning of section 1034(a), that taxpayer must physically occupy and live in the house.” Perry v. Commissioner, supra at 85 (quoting Young v. Commissioner, T.C. Memo. 1985-127). Concerning the intent element, section 1.1034-1(c)(3)(i), Income Tax Regs., interpreting section 1034 provides: Whether or not property is used by the taxpayer as his residence, and whether or not property is used by the taxpayer as his principal residence (in the case of a taxpayer using more than one property as a residence), depends upon all the facts and circumstances in each case, including the good faith of the taxpayer. Courts have likewise reiterated that intent is to be taken into account, but they have nonetheless steadfastly adhered to the principle that intent alone, divorced from actual use, will not satisfy section 1034. See United States v. Sheahan, 323 F.2d 383, 385-387 (5th Cir. 1963); Bayley v. Commissioner, 35 T.C. 288, 295-297 (1960). As stated by the court in United States v. Sheahan, 323 F.2d at 385: It is true that the good faith of the taxpayer is a circumstance to be weighed, and it may be the decisive factor in a close case in determining whether one of two houses is the principal residence, or whether the house is a residence, but there must be supporting facts to show that the taxpayer used the new property as his principal residence.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011