Peter U. and Mary M. Boehme - Page 9




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               B.  Applicability of Section 163(h)(2)(D)                              
               In particular, respondent argues that petitioners’ interest            
          payments fail to satisfy the requirements for the exception                 
          provided in section 163(h)(2)(D) for “qualified residence                   
          interest”.  That is because, although petitioners’ principal                
          residence meets the definition of a “qualified residence” (see              
          sec. 163(h)(4)(A)(i)(I)), and although the loans constituted                
          “acquisition indebtedness” (which, pursuant to section                      
          163(h)(3)(B)(i)(I), includes indebtedness “incurred in * * *                
          constructing, or substantially improving any qualified                      
          residence”), repayment of the loans was not secured by such                 
          residence as required by section 163(h)(3)(B)(i)(II).                       
               We agree with respondent that, based upon the stipulated               
          facts, the $64,000 interest payment does not constitute                     
          “qualified residence interest” within the meaning of section                
          163(h)(2)(D) and (3).                                                       

               5(...continued)                                                        
                    (A) interest paid or accrued on indebtedness                      
                    properly allocable to a trade or business (other                  
                    than the trade or business of performing services                 
                    as an employee),                                                  
                    (B) any investment interest (within the                           
                    meaning of subsection (d)),                                       
                         *    *    *    *    *    *    *                              
                    (D) any qualified residence interest (within                      
                    the meaning of paragraph (3)),                                    







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