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...)
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