                          T.C. Summary Opinion 2012-82



                         UNITED STATES TAX COURT



                 DAVID MERRITT FUNK, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 5539-11S.                         Filed August 22, 2012.



      David Merritt Funk, pro se.

      Karen O. Myrick and Susan K. Bollman, for respondent.



                               SUMMARY OPINION


      CHIECHI, 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



      1
        Hereinafter, all section references are to the Internal Revenue Code in effect
for the year at issue. All Rule references are to the Tax Court Rules of Practice and
Procedure.
                                         -2-

to section 7463(b), the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other case.

      Respondent determined a deficiency in petitioner’s Federal income tax for his

taxable year 2008 of $7,500.

      We must decide whether petitioner is entitled to the first-time homebuyer

credit under section 36(a). We hold that he is not.

                                     Background

      Virtually all of the facts have been stipulated and are so found.

      Petitioner resided in Iowa at the time he filed the petition.

      On February 21, 2007, petitioner and Amber J. Reeves (Ms. Reeves), as

buyers, and Matthew P. Johnson and Lynn M. Johnson (Johnsons), as sellers,

executed a document titled “Real Estate Contract” (contract). On February 27,

2007, the contract was recorded with the recorder for Polk County, Iowa.

      Pursuant to the contract, the Johnsons agreed to sell to petitioner and Ms.

Reeves, and petitioner and Ms. Reeves agreed to purchase from the Johnsons, for

$156,000 the real property at 3613 E. 43rd Street, Des Moines, Iowa 50317 (real

property in question). Petitioner and Ms. Reeves in effect obtained a loan from the

Johnsons in order to finance payment of the purchase price of the real property in
                                        -3-

question. The terms of that loan were set forth in paragraph 1 of the contract as

follows:

      1.   TOTAL PURCHASE PRICE. The Buyers agree to pay for said
           property the total of $156,000.00, due and payable as directed by
           Sellers, as follows:

           a. DOWN PAYMENT of $2000.00, receipt of which is
              hereby acknowledged.

           b. BALANCE OF PURCHASE PRICE, $154,000.00, as
              follows:

              $294.53 due and payable on or before March 1, 2007,
              with interest thereon at the rate of 7.650% per annum,
              and $1092.65 due and payable on or before the 1st day of
              each and every month thereafter, with interest thereon at
              the rate of 7.650% per annum, until the entire unpaid
              balance of the contract, including principal and accrued
              interest, is paid in full. The entire balance shall be due
              and payable on February 21, 2012.

           c. ESCROWS. In addition to the principal and interest payment,
              the Buyers shall pay 1/12th of the annual real estate taxes,
              1/12th of the yearly insurance premium, to be paid to the
              Sellers with the monthly payments into an escrow fund estab-
              lished by the Sellers. Sellers shall use these funds to pay real
              estate taxes and insurance, prior to their delinquency, as the
              same shall come due. The parties shall review and make
              adjustments in the escrow account during the term of the con-
              tract.

           d. TAXES AND INSURANCE. Taxes and Insurance shall be
              included in monthly payment as follows: taxes $299.50 and
              insurance $45.00. TOTAL PAYMENT DUE $1,437.15, due
                                         -4-

               and payable on or before March 1, 2007 and each and
               every month thereafter.

           e. PREPAYMENT. This contract shall allow the Buyers to
              prepay all or any part of the principal without penalty.

           f. DUE ON SALE OR ASSIGNMENT. This contract shall
              become due and payable in full upon sale or assignment by the
              Buyers.

           g. ACCELERATION. In the event of default by the Buyers, the
              Sellers, at their sole option, may accelerate the balance of the
              contract and require that the entire unpaid balance of the con-
              tract, including principal and accrued interest, be immediately
              due and payable by the Buyers. If the Sellers elect to acceler-
              ate the contract, the Sellers may not forfeit the contract, but
              must proceed with a foreclosure action, as set forth below.

      Provided that petitioner and Ms. Reeves timely performed all of their obliga-

tions under the contract, the contract required that possession of the real property in

question be delivered to them on February 21, 2007, the date on which the parties to

the contract executed it. In that event, “any adjustments of rent, insurance, taxes,

interest, and all charges attributable to the Sellers’ [Johnsons’] possession” were to

be made as of the date of possession.

      In addition to the provisions in paragraph 1.c. and d. of the contract relating

to real estate taxes on the real property in question (quoted above), the contract

provided as follows with respect to real estate taxes:
                                  -5-

Sellers shall not pay real estate taxes prorated to the date of closing
and any unpaid taxes thereon payable in prior years. Buyers shall pay
any taxes not assumed by Sellers and all subsequent taxes before same
become delinquent. Whoever may be responsible for the payment of
said taxes, and the special assessments, if any, each year, shall furnish
to the other parties evidence of payment of such items not later than
July 15th of each year. Any proration of taxes shall be based upon
the taxes for the year currently payable, unless the parties state
otherwise.

The contract also provided in pertinent part as follows:

5.   CONDITION OF PROPERTY. Sellers are selling this property
     in “as-is” condition. Buyers acknowledge that they have
     inspected the property, have examined all official plat documents,
     including easements of record, and applicable restrictive cove-
     nants, and are familiar with all aspects and conditions of the
     property. Buyers accept the property in its current condition and
     acknowledge that the property satisfies their need, intent, and
     plans for use.

6.   CARE OF PROPERTY. Buyers shall take good care of this
     property, shall keep the buildings and other improvements now or
     hereafter placed on the said premises in good and reasonable
     repair, and shall not injure, destroy, or remove the same during the
     life of this contract. Buyers shall not make any material alter-
     ation in said premises without the written consent of the Sell-
     ers, which consent shall not be unreasonably withheld. Buyers
     shall not use or permit the premises to be used for any illegal
     purpose.

7.   INSURANCE. Except as may be otherwise included above,
     Buyers as and from said date of possession, shall constantly keep
     in force insurance, premiums for which shall be paid by Buyers
     through the escrow account referred to above, against loss by fire,
     tornado and other hazards, casualties and contingencies as Sellers
     may reasonably require on all building and improvements, now on
                                   -6-

     or hereafter placed on said premises and any personal property
     which may be the subject of this contract, in companies to be
     reasonably approved by Sellers in an amount not less than the full
     insurable value of such improvements and personal property or
     not less than the unpaid purchase price herein, whichever amount
     i[s] smaller, with such insurance payable to Sellers and Buyers as
     their interests may appear. BUYERS SHALL PROMPTLY
     DEPOSIT SUCH POLICY WITH PROPER RIDERS WITH
     SELLERS for the further security for the payment of the sums
     herein mentioned. In the event of any such casualty loss, the
     insurance proceeds may be used under the supervision of the
     Sellers to replace or repair the loss if the proceeds be adequate; if
     not, then some other reasonable application of such funds shall be
     made; but in any event such proceeds shall stand as security for
     the payment of the obligations herein.

8.   LIENS. No mechanics’ liens shall be imposed upon or foreclosed
     against the real estate described herein. The imposition of a me-
     chanics’ lien against the property shall be considered a default
     event.

9.   ADVANCEMENT BY SELLERS. If Buyers fail to pay such
     taxes, special assessments, and insurance and effect necessary
     repairs, as above agreed, Sellers may, but need not, pay such
     taxes, special assessments, insurance, and make necessary repairs,
     and all sums so advanced shall be due and payable on demand or
     such sums as advanced may, at the election of Sellers, be added to
     the principal amount due hereunder and so secured.

*          *           *           *           *           *           *

11. TIME IS OF THE ESSENCE. Time is of the essence in this
    contract. Failure to promptly assert rights of Sellers herein shall
    not, however, be a waiver of such rights or a waiver of any exist-
    ing or subsequent default. Sellers and Buyers agree that the
                                         -7-

           provisions of the balloon payment, above, shall be strictly
           enforced.

      12. EXCEPTIONS TO WARRANTIES OF TITLE. The warran-
          ties of title in any Deed made pursuant to this contract shall be
          without reservation or qualification EXCEPT: (a) Zoning ordi-
          nances; (b) Such restrictive covenants as may be shown of record;
          (c) Easements of record, if any; (d) As limited by prior paragraphs
          of this contract; (e) Sellers shall give Special Warranty as to the
          period after equitable title passes to the Buyers;
          (f) Spouse if not titleholder, need not join in any warranties of the
          Deed unless otherwise stipulated.

      13. DEED AND ABSTRACT. If all said sums of money and inter-
          est are paid to Sellers during the life of this contract, and all other
          agreements for performance by Buyers have been complied with,
          Sellers will execute and deliver to Buyers a General Warranty
          Deed conveying said premises in fee simple pursuant to and in
          conformity with this contract and Sellers will at this time deliver
          to Buyers an abstract showing merchantable title, in conformity
          with this contract. Such abstract shall begin with the government
          patent (unless pursuant to the Iowa State Bar standards there is a
          lesser requirement as to period of abstracting) to said premises
          and shall show title thereto in Sellers as of the date of this con-
          tract; or as of such earlier date if and as designated in the next
          sentence. This contract supersedes the previous written Offer to
          Buy. Sellers shall also pay the cost of any abstracting due to any
          act or change in the personal affairs of the Sellers resulting in a
          change of title by operation of law or otherwise.

      14. APPROVAL OF ABSTRACT. Buyers have examined the
          abstract of title to this property and such abstract is accepted.

      On February 21, 2007, petitioner started living in the house on the real

property in question and treated it as his home. Thereafter, as required by the
                                         -8-

contract, petitioner paid all the expenses associated with the real property in

question, including real property taxes, premiums for insurance on that property,

utility expenses, and any repair expenses.

      Sometime in 2008, petitioner obtained a loan from a person other than the

Johnsons in order to finance payment to the Johnsons of the remaining unpaid

purchase price of the real property in question.2 Thereafter, on June 24, 2008, the

Johnsons executed a special warranty deed in which they conveyed that property to

petitioner and Ms. Reeves. On June 30, 2008, that deed was recorded with the

recorder for Polk County, Iowa. That special warranty deed stated that it was

“given in full and complete satisfaction of one certain real estate contract dated

February 21, 2007 and filed February 27, 2007 * * * in the office of the Polk County

Recorder.”

      In Form 1040, U.S. Individual Income Tax Return (return), that petitioner

filed around February 9, 2008, for his taxable year 2007 (2007 return), he showed

his home address as the address for the real property in question. In his 2007

return, petitioner claimed deductions for real property taxes and home mortgage




      2
       The record does not establish whether both petitioner and Ms. Reeves
obtained a loan from a person other than the Johnsons to finance payment to the
Johnsons of the remaining unpaid purchase price of the real property in question.
                                         -9-

interest with respect to the real property in question of $3,614 and $10,127,

respectively.

      In the return that petitioner filed on February 7, 2009, for his taxable year

2008 (2008 return), the year at issue, he showed his home address as the address for

the real property in question. In his 2008 return, petitioner claimed deductions for

real property taxes and home mortgage interest with respect to the real property in

question of $2,954 and $10,199, respectively.3

      On March 2, 2009, petitioner filed Form 1040X, Amended U.S. Individual

Income Tax Return, for his taxable year 2008 (2008 amended return). That

amended return was identical to petitioner’s 2008 return except that petitioner

claimed in his 2008 amended return a first-time homebuyer credit of $7,500.

      Respondent issued a notice of deficiency (notice) to petitioner for his taxable

year 2008. In that notice, respondent disallowed the first-time homebuyer credit of

$7,500 that petitioner claimed in his 2008 amended return.

                                     Discussion

      Petitioner bears the burden of proving that respondent’s determination in the

notice is wrong. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).


      3
      In his 2008 return, petitioner also claimed “Qualified mortgage interest
premiums” of $2,312.
                                         - 10 -

      An individual taxpayer who is a first-time homebuyer of a principal residence

in the United States is entitled to a credit in an amount equal to 10 percent of the

purchase price of the principal residence, sec. 36(a), but such amount is not to

exceed $7,500, sec. 36(b)(1)(A).4 The credit is applicable only if the taxpayer

“purchased” the principal residence on or after April 9, 2008, and before July 1,

2009. Sec. 36(h). The term “first-time homebuyer” is defined in section 36(c)(1) to

mean “any individual if such individual * * * had no present ownership interest in a

principal residence during the 3-year period ending on the date of the purchase of

the principal residence to which this section [36] applies.” As pertinent here, the

term “purchase” is defined in section 36(c)(3) to mean “any acquisition”.

      The parties agree that petitioner5 “purchased” the real property in question

before July 1, 2009, as required by section 36(h). The only dispute here is whether

petitioner “purchased” that property after April 9, 2008, as required by that

section.




      4
      In effect, the first-time homebuyer credit is a non-interest-bearing loan from
the Government that must be repaid over a 15-year period. See sec. 36(f).
      5
        Although under the contract Ms. Reeves and petitioner were the buyers of
the real property in question, for convenience we generally shall refer hereinafter
only to petitioner who claimed in his 2008 amended return the entire amount of the
credit allowed by sec. 36.
                                        - 11 -

      It is petitioner’s position that for purposes of section 36 he “purchased” the

real property in question on June 24, 2008. In support of that position, petitioner

argues that June 24, 2008, is the date on which he “took ownership” of that property

because that is the date on which the Johnsons executed a special warranty deed in

which they conveyed to him and Ms. Reeves the real property in question.

      Respondent counters that for purposes of section 36 petitioner “purchased”

the real property in question in 2007, and thus not after April 9, 2008,6 when

(1) under Iowa law the contract conveyed equitable title to the real property in

question to him and Ms. Reeves and (2) he lived in the house on that property,

treated it as his home, and enjoyed the benefits and bore the burdens of the

ownership of the real property in question.7




      6
       The date on which the Johnsons, as sellers, agreed to sell, and petitioner and
Ms. Reeves, as buyers, agreed to purchase, the real property in question was
February 21, 2007. That was also the date on which petitioner started living in the
house on that property and treated it as his home.
      7
        Respondent advances an alternative argument in support of respondent’s
position that petitioner is not entitled to the credit under sec. 36(a). We need not
address that alternative argument. That is because, as discussed below, we agree
with respondent’s argument that for purposes of sec. 36 petitioner “purchased” the
real property in question in 2007.
                                       - 12 -

      In resolving the dispute between the parties, we are guided by the principles

summarized in Keith v. Commissioner, 115 T.C. 605, 611-612 (2000), where we

stated:

           Case law * * * sets forth the standard for determining when a sale
      is complete for tax purposes. With respect to real property, a sale and
      transfer of ownership is complete upon the earlier of the passage of
      legal title or the practical assumption of the benefits and burdens of
      ownership. See Major Realty Corp. & Subs. v. Commissioner, 749
      F.2d 1483, 1486 (11th Cir. 1985), affg. in part and revg. in part T.C.
      Memo. 1981-361; Dettmers v. Commissioner, 430 F.2d 1019, 1023
      (6th Cir. 1970), affg. Estate of Johnston v. Commissioner, 51 T.C. 290
      (1968); Baird v. Commissioner, 68 T.C. 115, 124 (1977). This test
      reaffirms the longstanding principle, evidenced by the following early
      statement, that transfer of legal title is not a prerequisite for a
      completed sale: “A closed transaction for tax purposes results from a
      contract of sale which is absolute and unconditional on the part of the
      seller to deliver to the buyer a deed upon payment of the consideration
      and by which the purchaser secures immediate possession and
      exercises all the rights of ownership.” Commissioner v. Union Pac.
      R.R. Co., 86 F.2d 637, 639 (2d Cir. 1936), affg. 32 B.T.A. 383 (1935).

           In determining whether passage either of title or of benefits and
      burdens has occurred, we look to State law. It is State law that
      creates, and governs the nature of, interests in property, with Federal
      law then controlling the manner in which such interests are taxed.
      See United States v. National Bank of Commerce, 472 U.S. 713, 722
      (1985). Here, execution of the contracts for deed was not accompanied
      by a transfer of legal title, so we must decide whether these instruments
      were sufficient under State law to confer upon the purchaser the benefits
      and burdens of ownership. This inquiry is a practical one to be resolved
      by examining all of the surrounding facts and circumstances. * * *
                                         - 13 -

            Among the factors which this and other courts have cited as
      indicative of the benefits and burdens of ownership are: A right to
      possession; an obligation to pay taxes, assessments, and charges
      against the property; a responsibility for insuring the property; a duty to
      maintain the property; a right to improve the property without the
      seller’s consent; a bearing of the risk of loss; and a right to obtain legal
      title at any time by paying the balance of the full purchase price. See
      Goldberg v. Commissioner, T.C. Memo. 1997-74; see also Major
      Realty Corp. v. Commissioner, supra at 1487; Grodt & McKay Realty,
      Inc. v. Commissioner, 77 T.C. 1221, 1237-1238 (1981); Musgrave v.
      Commissioner, T.C. Memo. 2000-285; Berger v. Commissioner, T.C.
      Memo. 1996-76; Spyglass Partners v. Commissioner, T.C. Memo.
      1995-452. When a buyer, by virtue of such incidents, would be
      considered to have obtained equitable ownership under State law, a
      sale will generally be deemed completed for Federal tax purposes.
      ***

      In Woods v. Commissioner, 137 T.C. 159 (2011), we applied principles

consistent with the principles summarized in Keith in determining when for purposes

of section 36 an individual taxpayer “purchased” certain real property. In Woods,

after examining applicable State law in order to determine the property rights of the

taxpayer under a certain agreement for deed to purchase a house, we held, inter alia,

that for purposes of section 36 the taxpayer there involved “purchased” the house

with respect to which he claimed the first-time homebuyer credit in the year in

which he entered into that agreement. Id. at 163.

      As required by Woods and Keith, we shall examine the law of the State of

Iowa (Iowa law) to determine when petitioner acquired ownership of the real
                                          - 14 -

property in question. Under Iowa law, a contract for the sale and the purchase of

real property, like the contract in question here, “works an equitable conversion.

The contract vendee becomes the equitable owner; the contract vendor holds title as

trustee for his purchaser.” Fellmer v. Gruber, 261 N.W.2d 173, 174 (Iowa 1978)

(citing H.L. Munn Lumber Co. v. City of Ames, 176 N.W.2d 813, 816-817 (Iowa

1970)). Unless the parties to the contract agree otherwise, the purchaser, as the

“holder of the ownership interest”, id. at 174, bears any loss to real property to

which a contract for the sale and the purchase of that property pertains that occurs

after the effective date of the contract, see id.

       We hold that under Iowa law petitioner (and Ms. Reeves) became the

equitable owners of the real property in question as of February 21, 2007, the

effective date of the contract in question. That contract was a financing

arrangement between the Johnsons, as sellers, and petitioner and Ms. Reeves, as

buyers, of the real property in question under which the Johnsons made a loan to

petitioner and Ms. Reeves in order to finance their purchase of that property.

Consistent with Iowa law, which treated petitioner (and Ms. Reeves) as the

equitable owners of the real property in question as of February 21, 2007 (the

effective date of the contract), on that date and under that contract petitioner started

living in the house on that property and treated it as his home. Thereafter, as
                                         - 15 -

required by the contract, petitioner paid all the expenses associated with the real

property in question, including real property taxes, premiums for insurance on that

property, utility expenses, and any repair expenses. Moreover, in petitioner’s 2007

return petitioner showed his home address as the address for the real property in

question. In that return, petitioner claimed deductions for real property taxes and

home mortgage interest with respect to the real property in question of $3,614 and

$10,127, respectively.

      On the record before us, we find that for purposes of section 36 petitioner

“purchased” the real property in question on February 21, 2007, and thus not after

April 9, 2008, as required by section 36(h). On that record, we hold that petitioner

is not entitled to the first-time homebuyer credit under section 36(a) for his taxable

year 2008.

      To reflect the foregoing,


                                                  Decision will be entered

                                        for respondent.
