PURSUANT TO
An order granting respondent's motion and decision for respondent will be entered.
CHIECHI,
This case is before the Court on respondent's motion for summary judgment (respondent's motion). The Court will grant respondent's motion.
All of the facts for purposes of resolving respondent's motion have been stipulated and are so found.
Petitioners resided in Virginia at the time they filed the petition.
On October 31, 2003, petitioner William K. Cheung (Mr. Cheung) purchased certain property (Vidalia property) on Vidalia Court in Dumfries, Virginia (Dumfries), 2012 Tax Ct. Summary LEXIS 107">*108 moved into the house (Vidalia house) on that property, and resided there until March 31, 2009.
On July 26, 2004, Mr. Cheung married petitioner Lizhen Cheung (Ms. Cheung) in Nanjing City, Jiangsu Province, People's Republic of China. On January 18, 2006, Ms. Cheung moved into the Vidalia house and resided there with Mr. Cheung until March 31, 2009.
On March 31, 2009, Mr. Cheung purchased certain property (Crystal Downs property) on Crystal Downs Terrace in Dumfries and moved, together with Ms. Cheung, into the house (Crystal Downs house) on that property. 2
Petitioners filed Form 1040, U.S. Individual Income Tax Return (return), for their taxable year 2008 (2008 return). In that return, petitioners reported total income of $137,192 and total tax of $10,406. In their 2008 return, petitioners claimed (1) tax withheld of $11,236, (2) a first-time homebuyer credit of $8,000 with respect to the Crystal Downs property, (3) a recovery rebate credit of $1,800, (4) an overpayment of $10,630, and (5) a refund of the same amount.
On May 4, 2009, 2012 Tax Ct. Summary LEXIS 107">*109 respondent issued to petitioners a refund of $8,830. 3
On April 18, 2011, respondent notified petitioners by letter (Letter-566(CG)) that respondent was examining their 2008 return. In that letter, petitioners were asked to provide respondent with "additional information to substantiate", inter alia, the first-time homebuyer credit that they claimed in that return. Petitioners provided respondent with a U.S. Department of Housing and Urban Development (HUD) settlement statement (HUD statement) with respect to Mr. Cheung's purchase of the Crystal Downs property. That statement showed Mr. Cheung as the borrower/purchaser of that property and a final settlement date of March 31, 2009.
Respondent issued a notice of deficiency (notice) to petitioners for their taxable year 2008. In that notice, respondent 2012 Tax Ct. Summary LEXIS 107">*110 determined to (1) disallow the first-time homebuyer credit of $8,000 that petitioners claimed in their 2008 return and (2) impose on them the accuracy-related penalty under section 6662(a).
In the petition, petitioners alleged error solely with respect to respondent's determination in the notice to disallow the first-time homebuyer credit of $8,000 that they claimed in their 2008 return. They alleged no error with respect to respondent's determination in the notice to impose on them the accuracy-related penalty under section 6662(a).
The Court may grant summary judgment where there is no genuine dispute as to any material fact and a decision may be rendered as a matter of law. Rule 121(b);
As pertinent here, an individual taxpayer who is a first-time homebuyer of a principal residence in the 2012 Tax Ct. Summary LEXIS 107">*111 United States is entitled to a credit in an amount equal to 10 percent of the purchase price of the principal residence,
The term "first-time homebuyer" is defined in
It is petitioners' position that they are entitled for their taxable year 2008 to the first-time homebuyer credit with respect to the Crystal Downs property. In support of their position, petitioners rely on
Petitioners argue that in the case of a married couple interpretation of
Respondent counters that petitioners are not entitled for their taxable year 2008 to the first-time homebuyer credit because Mr. Cheung had an ownership interest in a principal residence, namely, the Vidalia property, 42012 Tax Ct. Summary LEXIS 107">*114 during the three-year period that ended on March 31, 2009, the date on which he purchased the Crystal Downs property, the principal residence with respect to which petitioners are claiming for their taxable year 2008 the first-time homebuyer credit. As a result, respondent argues, Mr. Cheung is not a first-time homebuyer as defined in
The Court turns first to petitioners' suggestion that the definition of the term "first-time homebuyer" for HUD and FHA purposes that appears in the HUD Web site 6 governs resolution of the question whether Mr. Cheung is a first-time homebuyer under
The Court considers now petitioners' argument that in the case of a married couple
On the record before the Court, the Court concludes that Mr. Cheung is not a first-time homebuyer as defined in
The Court has considered all of the contentions and arguments of petitioners that are not discussed herein, and the Court finds them to be without merit, irrelevant, and/or 2012 Tax Ct. Summary LEXIS 107">*118 moot. 9
To reflect the foregoing,
1. Unless otherwise indicated, all section references hereinafter are to the Internal Revenue Code (Code) in effect for the year at issue. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Although petitioners moved into the Crystal Downs house on March 31, 2009, Mr. Cheung continued to own the Vidalia property until at least August 14, 2012.↩
3. The record does not establish why respondent issued to petitioners a refund of only $8,830 when they claimed a refund of $10,630 in their 2008 return. We note, however, that the difference between the refund amount claimed in the 2008 return and the refund amount issued by respondent is equal to the amount of the recovery rebate credit (i.e., $1,800) that petitioners claimed in that return.↩
4. On October 31, 2003, Mr. Cheung purchased the Vidalia property, moved into the Vidalia house on that property, and resided there until March 31, 2009. On the latter date, Mr. Cheung purchased the Crystal Downs property and he and Ms. Cheung moved into the Crystal Downs house on that property.
5. Respondent advances no other argument in support of respondent's position that petitioners are not entitled for their taxable year 2008 to the first-time homebuyer credit. The Court considers in its analysis of whether petitioners are entitled to that credit the sole argument that respondent advances in support of respondent's position and all of the arguments and contentions that petitioners advance in support of their position.↩
6. The definition of the term "first-time homebuyer" for HUD and FHA purposes is restated in a San Francisco Chronicle article on which petitioners rely.↩
7. The legislative history of
8. In addressing in
9. In the petition, petitioners did not allege error with respect to respondent's determination in the notice that they are liable for their taxable year 2008 for the accuracy-related penalty under sec. 6662(a). Consequently, respondent does not address that determination in respondent's motion. The Court has consistently held that pursuant to Rule 34(b)(4) a taxpayer is deemed to have conceded a determination of the Commissioner of Internal Revenue with respect to which the taxpayer has not alleged error in the petition.
