Michael A. McGrath and Frances Y. McGrath - Page 18




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          To the same effect, see sec. 1.61-8(c), Income Tax Regs;12 see              
          also sec. 109.                                                              
               The parties have stipulated that this exception applies to             
          allow petitioners rent expense deductions of $3,123 for 1995 and            
          $15,616 for 1996, for otherwise capital expenditures.  This is              
          founded on the parties’ stipulation that “$18,739.00 of the                 
          expenditures * * * were in lieu of rental payments * * * to be              
          made by petitioners over the six (6) month period of December,              
          1995 through May, 1996, inclusive.”  This latter part of the                
          stipulation is, in turn, founded on the provisions of the Lease             
          with regard to petitioners’ rent obligations and construction               
          obligations, as described supra in the Findings of Fact.                    
               We now consider whether any amount in addition to the                  
          stipulated $18,739 was intended to be payments made in lieu of              
          rent.                                                                       


               12  Sec. 1.61-8(c), Income Tax Regs., provides, in pertinent           
          part, as follows:                                                           
               Sec. 1.61-8  Rents and Royalties.–-                                    
                         *    *    *    *    *    *    *                              
                    (c) Expenditures by lessee.  As a general rule, if a              
               lessee pays any of the expenses of his lessor such payments            
               are additional rental income of the lessor.  If a lessee               
               places improvements on real estate which constitute, in                
               whole or in part, a substitute for rent, such improvements             
               constitute rental income to the lessor.  Whether or not                
               improvements made by a lessee result in rental income to the           
               lessor in a particular case depends upon the intention of              
               the parties, which may be indicated either by the terms of             
               the lease or by the surrounding circumstances. * * *                   





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