489 F2d 754 H. Lee Kanter and Bette O. Kanter v. United States of America

489 F.2d 754

74-1 USTC P 9182

H. Lee Kanter and Bette O. Kanter, Appellants
United States of America, Appellee.

No. 73-2150.

United States Court of Appeals, Fourth Circuit.

Jan. 15, 1974.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.


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The taxpayers claim the right to a deduction for expenses of maintenance under Section 212(2) of the Internal Revenue Code, and depreciation under Section 167(a)(2) of the Code, on their income taxes for the years 1966 through 1969, in connection with a beach home owned by them but made available for rental during the nine "off-season" months. The Commissioner allowed such deductions only up to the amount of money actually received as rental income for the years in question. After payment of the tax assessed as a result of such disallowance, the taxpayers sued for a refund.


In denying relief, the District Court found as a fact that the home was not purchased and maintained for purposes of financial gain, whether by way of capital appreciation or current income. It is conceded that such finding can only be reversed if clearly erroneous. We find no plain error in the finding and accordingly affirm the District Court's decision denying the taxpayers' relief.