Lee F. Parker and Diane K. Parker - Page 8




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          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.                                            







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