J. Clark and Mary R. Bundren - Page 8




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          issues are those described in (1) and (2) above.  We address each           
          of these issues in turn.                                                    
               1.  Petitioners’ Carryover Basis in the 84th Street Property           
               The parties appear to agree that petitioners’ basis in the             
          84th Street property immediately before the exchange in December            
          1994 was unchanged from the time the property was converted from            
          personal to business use in the spring of 1994.  At the time of             
          the conversion, petitioners’ basis in the 84th Street property              
          was the lesser of the then fair market value or the adjusted cost           
          basis.  See Heiner v. Tindle, 276 U.S. 582 (1928); Higgins v.               
          Commissioner, T.C. Memo. 1995-139; Frahm v. Commissioner, T.C.              
          Memo. 1974-138; sec. 1.165-9(b)(2), Income Tax Regs.  Respondent            
          contends, and petitioners do not dispute, that the fair market              
          value of the 84th Street property at the time of conversion was             
          less than cost, which was at least $233,130.5  The question,                
          then, is what the fair market value of the 84th Street property             
          was when petitioners converted it from personal to business use.            
               “Fair market value” is defined as “the price at which                  
          property would change hands between a willing buyer and a willing           
          seller, neither being under any compulsion to buy or to sell and            


               4(...continued)                                                        
          exchange includes $10,668 in closing costs.                                 
               5 This amount represents petitioners’ total investment in              
          the 84th Street property (i.e., the $183,000 paid by petitioners            
          to purchase the property plus the approximately $50,130 they                
          spent to improve the property).                                             





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