Robert Lee McWilliams - Page 11

                                               - 11 -                                                 
            determination.  Petitioner has made no argument other than the collateral                 
            estoppel argument discussed, supra.                                                       
                  Accordingly, we sustain respondent's determinations adjusted for her                
            concessions.                                                                              
            Issue 4. Capital Gain--1988                                                               
                  Respondent argues that petitioner realized capital gain income in 1988.             
            Petitioner argues that there was no capital gain transaction attributable to              
            the 295 shares of stock in TSI previously owned by petitioner.                            
                  Generally, cash basis taxpayers must include all items of income in the             
            gross income for the taxable year in which actually or constructively                     
            received.  Sec. 451(a); sec. 1.451-1(a), Income Tax Regs.  "Income although               
            not actually reduced to a taxpayer's possession is constructively received by             
            him in the taxable year during which it is credited to his account, set apart             
            for him, or otherwise made available so that he may draw upon it at any time".            
            Sec. 1.451-2(a), Income Tax Regs.  The sale of stock, other than stock in-                
            trade of the taxpayer, is the sale of a capital asset.  Sec. 1221(1).  And the            
            gain attributable to the sale of a capital asset results in capital gain                  
            income.  Sec. 1222.  Moreover, the gain from the sale of property is equal to             
            the excess of the amount realized (i.e., the sum of any money received plus               
            the fair market value of the property received; sec. 1001(b)) from the sale,              
            over the taxpayer's adjusted basis in the property.  Sec. 1001(a).                        
                  Respondent contends that as a result of the repurchase by TSI of its                
            stock from Gilbert in 1988 and in accordance with the Agreement and the prior             
            agreements entered into between petitioner and Gilbert, the proceeds from the             
            sale were payable to petitioner and therefore taxable as capital gain.                    
            Petitioner contends that since a capital transaction did not occur, the                   
            Agreement merely resulted in ordinary income to petitioner.11  Furthermore,               


            11                                                                                        
                  Although petitioner seems to be arguing that the character                          
            of the income is ordinary rather than capital, the amount he                              
                                                                         (continued...)               



Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Next

Last modified: May 25, 2011