- 26 - time of the sale, section 1034 does not apply to defer any gain from sale. Respondent relies on Perry v. Commissioner, 91 F.3d 82 (9th Cir. 1996), affg. T.C. Memo. 1994-247. Accordingly, the sole question we consider is whether the Walnut Creek residence was petitioner’s “principal residence” for purposes of section 1034. In the Perry case, the taxpayer had, because of a divorce, left the home in question approximately 3 years before its sale. In that case, the Court of Appeals for the Ninth Circuit held that the home was not the taxpayer’s principal residence because he had left it several years before it was placed for sale and sold. In other words, the taxpayer had ceased to “physically occupy and live in the house” long before it was intended to be sold. Id. at 85. On the basis of that reasoning in Perry, it appears that the taxpayer would not have met the 2-year before and after rule of section 1034. In this case, petitioner and Mrs. Corrigan used the Walnut Creek home as their principal residence until some time in 1986 when they decided to sell it and each of them moved to new residences, one of which was jointly purchased by petitioner and Mrs. Corrigan. Unlike the taxpayer in Perry, petitioner did not cease using the Walnut Creek home as his principal residence several years before and then decide to sell it and reinvest in another home. Petitioner and Mrs. Corrigan moved to new residences and sold the Walnut Creek property within a relativelyPage: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
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