1 All section references are to the Internal Revenue Code as

amended and in effect for the year in issue. All Rule references

are to the Tax Court Rules of Practice and Procedure.

 T.C. Memo. 1995-455

UNITED STATES TAX COURT

RICHARD BRUCE BEGELFER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 24056-91. Filed September 26, 1995.

Richard Bruce Begelfer, pro se

Bruce M. Wilpon, for respondent.

MEMORANDUM OPINION

GOLDBERG, Special Trial Judge: This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1

Respondent determined a deficiency in petitioner's Federal

income tax for 1987 in the amount of $6,538 and an addition to
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2 At trial, respondent conceded that petitioner was not liable

for an addition to tax for substantial understatement of tax

under sec. 6661 for the 1987 taxable year.

tax in the amount of $1,635 for substantial understatement of tax

pursuant to section 6661.

After a concession by respondent,2 the sole issue for our

decision is whether petitioner is entitled to nonrecognition

treatment under section 1034 for the gain he realized on the sale

of his principal residence. 

Some of the facts have been stipulated and are so found. 

The stipulation of facts and attached exhibits are incorporated

herein by this reference. At the time the petition was filed,

petitioner resided in Long Beach, New York. Subsequently,

petitioner relocated to Texas in November 1992.

During a part of 1987, petitioner resided in Bridgeport,

Connecticut. In February of that year, petitioner lost his job

when his employer became insolvent and decided to discontinue

operations. Because of financial difficulties, petitioner sold

his principal residence on May 1, 1987, and realized a capital

gain of $36,171. Petitioner did not report this gain on his 1987

Federal income tax return. Rather, petitioner chose to defer

recognition of the gain because he intended to replace his home

within the replacement period provided by section 1034.

Petitioner moved to the New York City area, and in August

1987 found full-time employment as a sales agent. During this
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period, petitioner attempted to purchase a new principal

residence. However, because he did not have an established

commission sales record, petitioner could not secure a mortgage. 

Petitioner was dismissed from his sales agent position in March

1988, after his employer discovered he was interviewing for

salaried employment. As petitioner continued this employment

search, he accepted part-time work assignments, which sometimes

required physical labor. During one of these assignments,

petitioner sustained serious injuries to his back, neck, and

ankle, which left him unable to work for several months.

In February of 1989, petitioner found full-time employment

and immediately sought to purchase a new residence. After an

unsuccessful attempt at acquiring a home, petitioner finally

succeeded in purchasing a residence on July 21, 1989, in Long

Beach, New York. Because of his injuries, petitioner has since

relocated to Austin, Texas, but he continues to own the New York

residence.

Petitioner contends that because of the recent physical and

financial hardships he has endured, as well as his good faith

effort to purchase another principal residence, the replacement

period provided by section 1034 should be waived. Respondent

argues simply that because petitioner did not purchase and use a

replacement residence within the statutory period, he is not

entitled to the benefits of section 1034(a). As unfortunate as
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petitioner's circumstances might appear, we concur with

respondent. 

Generally, any gain on the sale of a personal residence must

be recognized by the taxpayer. Sec. 1001(c). An exception to

this rule, allowing for nonrecognition of such gain, is provided

by section 1034. Section 1034(a) provides that if the taxpayer

sells his principal residence, and within a 24-month period

before or after the date of the sale, another property is

purchased and used by the taxpayer as a principal residence, gain

from the sale will be recognized only to the extent that the

taxpayer's adjusted sale's price of the old residence exceeds the

taxpayer's cost of purchasing the new residence. Sec. 1034(a).

When applying the time limitations to the provisions of

section 1034(a), the courts have long adopted a very strict

approach. The decisions consistently hold that the time limits

of section 1034 are uniformly applicable and that the courts are

without authority to waive or extend those statutory limitations

to take account of circumstances that may have caused delay in

purchasing a replacement residence. Henry v. Commissioner, T.C.

Memo. 1982-469; see Kern v. Granquist, 291 F.2d 29 (9th Cir.

1961); Elam v. Commissioner, 58 T.C. 238 (1972), affd. per curiam

477 F.2d 1333 (6th Cir. 1973); Chavez v. Commissioner, T.C. Memo.

1983-199. Extensions of the time limitations of section 1034(a)

are available only when a specific statutory provision so

provides. Moore v. Townsend, 577 F.2d 424, 428 n.7 (7th Cir.
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1978). For example, section 1034(h) and section 1034(k) extend

the normal replacement period of section 1034(a) in the case of,

respectively, a member of the armed forces on extended active

duty and an individual whose tax home is outside the United

States. No provision is made for the consideration of equitable

factors in determining whether the replacement period requirement

has been met. 

Petitioner purchased the New York residence 80 days beyond

the statutory period prescribed in section 1034. Moreover,

petitioner does not fall within the statutory provisions

extending the replacement period. As a result, petitioner must

recognize the gain on the sale of the Connecticut residence. We

sympathize with the difficulties petitioner has endured during

these years; however, the strict requirements of section 1034 do

not allow for extenuating circumstances, even if they are beyond

the control of the taxpayer. Chavez v. Commissioner, supra.

To reflect the foregoing,

Decision will be entered

for respondent, except as to

the addition to tax pursuant

to section 6661.