Cynthia Marie Bye - Page 4




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          applying the deferred gain from the sale of the Ridgefield house            
          to the 2106 house.  Petitioner’s 1996 Form 1040 incorrectly                 
          reported the gain from the sale of the 2105 house on Form 4797,             
          Sales of Business Property.  Petitioner filed Form 1040X for 1996           
          to remove the gain from Form 4797 and to correctly report it on             
          Form 2119, Sale of Your Home, and to elect to defer the gain.               
          Petitioner’s Form 2119 indicates that petitioner had not bought             
          or built a “new main home” at the time the form was completed but           
          that she planned to replace her home within the replacement                 
          period.  Petitioner did not file a second 1040X for 1994 to                 
          reverse the rollover of gain that was reported on the 1040X for             
          1994.                                                                       
               The notice of deficiency is based on a determination that              
          the Ridgefield house was rental property and that petitioner thus           
          did not meet the requirements of section 1034.  In the                      
          alternative, the notice of deficiency states that gain from the             
          sale was not properly computed.  At trial and in his trial                  
          memorandum, respondent abandoned these arguments and asked us to            
          consider whether petitioner is prohibited from rolling over into            
          a “new residence” the gain from the second sale within 2 years of           
          an “old residence” when petitioner also rolled over into the “new           
          residence” the gain from the first sale of an “old residence”.              
          Respondent explained that the rollover of the first residence in            
          1994 was disallowed because petitioner also filed a claim for the           






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