Edward C. Tietig - Page 25




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               In determining whether there is gain or loss on the                    
          foreclosure of petitioner’s property in 1991, an allocation must            
          be made for tax purposes between the portion of the structure’s             
          use devoted to personal use and the portion devoted to                      
          petitioner’s business.  See Snyder v. Commissioner, T.C. Memo.              
          1975-221.                                                                   
               According to petitioner, the entire structure should be                
          treated as property used in a trade or business despite the fact            
          that he lived there.  In support of his argument, petitioner                
          cites four Tax Court cases.22  In each cited case, the taxpayer             
          was seeking an exclusion from gross income under section 61 for             
          either lodging or meals provided by his employer pursuant to                
          section 119.                                                                
               Under section 119(a)(2), the value of lodging furnished to             
          an employee is excluded from the employee’s gross income if “the            
          employee is required to accept such lodging on the business                 
          premises of his employer as a condition of his employment.”                 
          Here, however, the fair rental value of the lodging provided to             
          petitioner has not been included in his income by respondent.               
          Rather, respondent determined that petitioner realized a capital            
          gain when the Miami property was foreclosed.  Thus, section 119             
          as an exception to section 61 does not apply in the instant case.           


               22Giesinger v. Commissioner, 66 T.C. 6 (1976); Lindeman v.             
          Commissioner, 60 T.C. 609 (1973); Olkjer v. Commissioner, 32 T.C.           
          464 (1959); and Stone v. Commissioner, 32 T.C. 1021 (1959).                 





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