Robert E. Corrigan - Page 26

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          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 relatively           






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