Robert W. Suhr - Page 6




                                          6                                           
          taxpayer must recognize gain on the sale of a personal residence            
          he or she owns.  See sec. 1001(c); United States v. Mitchell, 403           
          U.S. 190, 197 (1971); Potter v. Commissioner, 47 B.T.A. 607, 623            
          (1942).  In determining ownership, State law controls.  See                 
          United States v. Mitchell, supra; Aquilino v. United States, 363            
          U.S. 509, 512-513 (1960).                                                   
          B.   Whether Petitioner Had an Ownership Interest in the Arden              
               Road House                                                             
               Respondent contends that petitioner is subject to capital              
          gains tax on one-half of the proceeds from the sale of the Arden            
          Road house because the house was marital property.  See Berish v.           
          Berish, 432 N.E.2d 183, 184-185 (Ohio 1982); Wolfe v. Wolfe, 350            
          N.E.2d 413, 422 (Ohio 1976), overruled on other grounds Cherry v.           
          Cherry, 421 N.E.2d 1293 (Ohio 1981).  Respondent contends that,             
          because the Ohio court considered the Arden Road house to be                
          marital property, it conferred ownership in the house on                    
          petitioner.                                                                 
               We disagree.  Property need not be jointly owned to be                 
          marital property under Ohio law.  Under Ohio law, marital                   
          property includes property that is currently owned by either                
          spouse or both spouses, and that was acquired by either spouse or           
          both spouses during the marriage.  See Ohio Rev. Code Ann. sec.             
          3105.171(A)(3)(a) (Anderson 2000).2  Respondent’s reliance on Berish        


               2  Ohio Rev. Code Ann. sec. 3105.171(A)(3) (Anderson 2000)             
                                                             (continued...)           





Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011