Miguel Martin and Claudia P. Palos - Page 8




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          section 165.  Property that is used as a taxpayer’s residence may           
          be converted to rental or other income-producing property within            
          the meaning of section 165(a).  See, e.g., section 1.165-9,                 
          Income Tax Regs. (concerning the sale of residential property).             
          On that point, petitioners’ evidence did not show that the                  
          property had definitively been converted to rental or other                 
          income-producing property at the time of the earthquake.                    
               Generally, taxpayers must do more than merely list their               
          residential realty to convert its use from personal to one which            
          would permit a loss under section 165 that is not subject to the            
          limitation of section 165(h)(1) and (2).  See, e.g., Newcombe v.            
          Commissioner, 54 T.C. 1298, 1302-1303 (1970); Rogers v.                     
          Commissioner, T.C. Memo. 1965-8.  Although petitioners had listed           
          the property for sale and were continuing to make repairs to                
          enhance the property, some of their furniture remained, and the             
          property was listed for sale rather than for rent.  Petitioners             
          were able to lease the property just 4 days after the earthquake            
          occurred, but these events are not sufficient to place them over            
          the threshold necessary to convert their personal residence into            
          property for which section 165(c)(1) or (c)(2) losses would be              
          available.  Accordingly, the $9,221 casualty loss is subject to             
          the limitations of section 165(h)(1) and (2).                               

                                             Decision will be entered under           
                                        Rule 155.                                     





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