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but that they are subject to the limitation of section
280A(c)(5), which specifically applies to a use described in
section 280A(c)(3) where the dwelling unit is used by the
taxpayer during the taxable year as a residence.
Petitioners next contend that their third floor units come
within the provision of section 280A(f)(1)(B) which excludes from
the limitations of section 280A that portion of a dwelling unit
“used exclusively as a hotel, motel, inn, or similar
establishment.” They rely on the following proposed regulation:
Exception. Notwithstanding the provisions of paragraph
(c)(1) of this section, the term “dwelling unit” does
not include any unit or portion of a unit which is used
exclusively as a hotel, motel, inn, or similar
establishment. Property is so used only if it is
regularly available for occupancy by paying customers
and only if no person having an interest in the
property is deemed under the rules of this section to
have used the unit (or the portion of the unit) as a
residence during the taxable year. Thus, this
exception may apply to a portion of a home used to
furnish lodging to tourists or to long-term boarders
such as students. [Sec. 1.280A-1(c)(2), Proposed Income
Tax Regs., 45 Fed. Reg. 52399, 52401 (Aug. 7. 1980) as
amended by 48 Fed. Reg. 33320, 33322 (Jul. 21, 1983).]
Petitioners maintain that the month-to-month tenants of their
third floor units are analogous to “long-term boarders such as
students”.
Although proposed regulations carry no greater weight than a
position advanced on brief by respondent, they may be useful as
guidelines where they closely follow the legislative history of
the act. Estate of Wallace v. Commissioner, 95 T.C. 525, 547
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