Theodore B. Bare - Page 11




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          by section 1034.  Whether or not property is used by a taxpayer             
          as his residence depends upon all the facts and circumstances in            
          each case, including the good faith of the taxpayer.  See sec.              
          1.1034-1(c)(3)(i), Income Tax Regs.  "The elements of residence             
          are the fact of abode and the intention of remaining, and the               
          concept of residence is made up of a combination of acts and                
          intention.  Neither bodily presence alone nor intention alone               
          will suffice to create a residence."  Stolk v. Commissioner, 40             
          T.C. 345, 353 (1963), affd. 326 F.2d 760 (2d Cir. 1964); see also           
          Perry v. Commissioner, 91 F.3d 82, 85 (9th Cir. 1996), affg. T.C.           
          Memo. 1994-247.                                                             
               Petitioner never had any intention of making the Bowmen Lane           
          property his residence.  His limited use of the property is not             
          sufficient to create a residence.  Accordingly, petitioner does             
          not qualify for the nonrecognition provisions of section 1034.              
               Finally, we address the accuracy-related penalties imposed             
          pursuant to section 6662(a).  Section 6662(a) and (b)(1) imposes            
          a penalty of 20 percent of the portion of an underpayment of tax            
          that is attributable to negligence or disregard of rules or                 
          regulations.  “Negligence” includes any failure to make a                   
          reasonable attempt to comply with the statute, and “disregard”              
          includes any careless, reckless, or intentional disregard.  Sec.            
          6662(c).  We have further defined negligence as the failure to              
          exercise the due care that a reasonable and ordinarily prudent              






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