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U.S. Court of Appeals for the Ninth Circuit, 1968

Commissioner of Internal Revenue v. Hulet P. Smith and Loma M. Smith

Commissioner of Internal Revenue v. Hulet P. Smith and Loma M. Smith
U.S. Court of Appeals for the Ninth Circuit · Decided July 5, 1968 · Chambers, Ely, Circuit-Judges, Byrne
397 F.2d 804; 22 A.F.T.R.2d (RIA) 5096; 1968 U.S. App. LEXIS 6222 (Federal Reporter, Second Series)

Counsel

Edward Lee Rogers (argued), Lee A. Jackson, Thomas Silk, Attys., Dept, of Justice, Mitchell Rogovin, Asst. Atty. Gen., Tax Div., Dept, of Justice, Lester R. Uretz, Chief Counsel, Internal Revenue Service, Washington, D. C., for petitioner., Dana C. Smith (argued), Pasadena, Cal., for respondents.

Commissioner of Internal Revenue v. Hulet P. Smith and Loma M. Smith

Cases that cite this one

4 later published cases cite this decision.

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Opinion

PER CURIAM:

The taxpayers, husband and wife, owned a home in Arcadia, California. They acquired a new home a few hundred miles away and moved to it, never intending again to use the Arcadia property as a residence. It was put up for sale, and the Tax Court found that the taxpayers, during the period of time from when they vacated the home until its eventual sale, held it “for the production of income” within the meaning of sections 167(a) (2) and 212(2) of the Internal Revenue Code of 1954. Upon the basis of this finding, it was held that the taxpayers properly deducted maintenance expense, as well as depreciation, for that period. See Mitchell v. Commissioner, 47 T.C. 120 (1966), acq., 1967-1 Cum.Bull. 2.

The Government makes a strong case for reversal. See Recent Developments, Hulet P. Smith, 66 Mich.L.Rev. 562 (1968). Unusual circumstances are present, however, and we are not persuaded that the Tax Court’s factual finding and its consequent conclusions are clearly wrong.

Affirmed.

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