Sean J. Swarthout and Michell L. Swarthout - Page 3




                                        - 2 -                                         
               Respondent determined a deficiency in petitioners’ Federal             
          income tax of $8,809 for the taxable year 1995.                             
               The issue for decision is whether petitioners are required             
          to include in income capital gain realized from the sale of their           
          personal residence.1                                                        
               Some of the facts have been stipulated and are so found.               
          The stipulations of fact and the attached exhibits are                      
          incorporated herein by this reference.                                      
               On October 30, 1995, petitioners sold their residence on Pod           
          Drive in Vista, California (Pod residence), for $310,000.                   
          Petitioners reported a gain of $30,282 on the sale of this                  
          residence on their 1995 joint Federal income tax return.                    
          However, they reported that they planned to replace the home                
          within 2 years and therefore did not include the gain in income             
          on the 1995 return.                                                         
               On May 2, 1996, petitioners purchased a vacant lot on                  
          Robinhood Road in Vista, California (Robinhood property), for               
          $111,000.  On July 7, 1997, petitioners entered into a contract             
          for the construction of a residence on this property.                       
          Petitioners were obligated to pay $388,987 under this contract.             
          On August 20, 1997, petitioners borrowed $428,000 to finance the            
          construction of the new residence.                                          


          1Adjustments made to itemized deductions claimed by                         
          petitioners are computational and will be resolved by the Court’s           
          holding on the issue in this case.                                          




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