                     T.C. Summary Opinion 2011-10



                       UNITED STATES TAX COURT



               CARY ALLEN NIEVINSKI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16684-10S.               Filed February 7, 2011.



     Cary Allen Nievinski, pro se.

     J. Paul Knap, for respondent.



     SWIFT, Judge:    This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1    Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2008.
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this opinion shall not be treated as precedent for any other

case.

     Respondent determined a deficiency of $8,000 in petitioner’s

2008 Federal income tax.    The issue for decision is whether

petitioner is entitled to the $8,000 first-time homebuyer credit

(FTHBC) under section 36 for 2008.

                             Background

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

     At the time of filing the petition, petitioner resided in

Wisconsin.

     Before September 2009 petitioner spent a number of years as

a U.S. expatriate citizen living and working overseas for United

Airlines.    In the winter and fall of 2009 petitioner discussed

with his parents the purchase of a home in Milwaukee, Wisconsin,

that they had inherited from petitioner’s cousin in 2008.    As a

youth petitioner had spent some time in this home.

     Petitioner had never owned a home.

     On September 9, 2009, petitioner purchased the home from his

parents for $115,725.    Petitioner made a cash payment of $99,000

and forgave $16,725 in debts that his parents owed him.

Petitioner moved into the home and made it his principal

residence.

     On September 15, 2009, petitioner filed his 2008 individual

Federal income tax return, claiming an $8,000 FTHBC under section
                               - 3 -

36 relating to petitioner’s purchase of the home.   Under section

36(g), a qualified taxpayer purchasing a home in 2009 generally

was allowed to claim the FTHBC for either 2008 or 2009.

     In the preparation of petitioner’s 2008 Federal income tax

return, petitioner’s accountant obtained from the Internet or

from the particular tax preparation software to which he

subscribed a copy of Form 5405, First-Time Homebuyer Credit, on

which there apparently was no express explanation that the FTHBC

was not available with respect to a home purchased by a taxpayer

from a family member.   Versions of Form 5405 published in the

Internal Revenue Manual contain such an express explanation.

     On audit, because petitioner purchased the home from his

parents, respondent disallowed petitioner’s claimed $8,000 FTHBC.

     At trial petitioner also produced a copy of IRS Publication

4819, Important Information About The First-Time Homebuyer

Credit, in which there is no express explanation that home

purchases from family members do not qualify for the FTHBC.

                             Discussion

     Generally, section 36(a) and (b) allows a credit of up to

$8,000 to first-time homebuyers of a principal residence in the

United States.   As stated, for qualified homes purchased in 2009,

the FTHBC could be claimed on either the taxpayer’s 2008 or 2009

Federal income tax return.   Sec. 36(g).
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     However, under section 36(c)(3) the FTHBC is not available

to a taxpayer who purchases a home from a related person, and

under section 36(c)(5) related persons include direct ancestors

such as parents.   See also sec. 267(b) and (c)(4).

     Petitioner emphasizes that the particular Form 5405 that his

accountant apparently obtained from the Internet and used in the

preparation of petitioner’s 2008 Federal income tax return and

Publication 4819 do not expressly explain that to receive the

FTHBC a taxpayer must not have purchased a home from parents or

family members.

     In addition, petitioner complains about misleading or

inadequate explanations in IRS form letters he received, lack of

IRS good faith in addressing his administrative appeal and his

appeal to the Taxpayer Advocate Service, and repeated IRS

mailings to him addressed to an incorrect address.

     Respondent argues that the statutory provisions control and

that section 36(c) and related provisions adequately explain the

“no-purchase-from-family” limitation on the FTHBC and should have

been noted by petitioner and his accountant.

     We agree with respondent.    The provisions of section 36(c)

are clear.   Form 5405 and Publication 4819 provide general

instructions.   They do not purport to provide all rules and

limitations applicable to the FTHBC.     The apparent failure of

some IRS publications to explain the “no-purchase-from-family”
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limitation of the FTHBC has no effect on the authority of section

36(c).   Green v. Commissioner, 59 T.C. 456, 458 (1972); Fila v.

Commissioner, T.C. Memo. 1988-32.

     The apparent failure of petitioner’s accountant and of the

copy of Form 5405 and the tax preparation software that

petitioner’s accountant used to expressly explain the “no-

purchase-from-family” limitation of the FTHBC is unfortunate for

petitioner, but those failures do not provide any legal basis to

allow petitioner the claimed $8,000 FTHBC.

     We sustain respondent’s disallowance of the $8,000 FTHBC

claimed on petitioner’s 2008 Federal income tax return.

     To reflect the foregoing,


                                         Decision will be entered

                                 for respondent.
