explaining that facts and circumstances dictate whether a former residence used for personal purposes has been converted in the hands of the same taxpayer into property held for the production of income
How later courts described this case
- explaining that facts and circumstances dictate whether a former residence used for personal purposes has been converted in the hands of the same taxpayer into property held for the production of income
- an expense deduction is justified under section 212(2) only if the property to which it relates "is 'held for investment,' i.e., for the production of income"
Written by the judges who cited it.
The opinion
DeeNNBN, J., concurring: I agree with the conclusion of the majority opinion on the facts here presented; however, I am not certain how the legal premises stated in the body of the opinion will be interpreted and applied under different factual circumstances. Hence, I feel constrained to voice my views on the legal premises to be used in determining the intent of the taxpayer in holding the property, which I agree is the basic question in these cases.
In my view in order for a taxpayer to be entitled to deduct expenses incurred with respect to holding property formerly occupied as his residence he must either rent the property or bona fide offer the property for rent after he moves out and before he sells it, or he must hold the property for appreciation in value subsequent to the time he abandons it as his residence. I do not agree that the taxpayer must prove that he was holding the property for sale at a price which would exceed his cost or tax basis in the property, i.e., at a price which would produce a tax gain, but I do believe he must show that he was holding the property after abandoning it as his residence for sale at a value that would reflect an appreciation in value over the value of the property at the time it was abandoned as taxpayer’s residence.
TietjuNs, Naum, Forrester, Hott, IrwiN, and Sterrett, <//., agree with this concurring opinion.