Affiliated Foods, Inc. - Page 20

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          service" within the territory.  In Ford Dealers, we stated that             
          "when a taxpayer receives trust funds, which he is obligated to             
          expend in entirety for a specified purpose and no profit, gain or           
          other benefit is to be received by him in so doing, the funds are           
          not includable in gross income."  Id.  Focusing on the restricted           
          use of the funds in question, the Court held that such funds were           
          received in trust and did not represent gross income.  Id. at               
               In contrast, in Krim-Ko Corp. v. Commissioner, 16 T.C. 31              
          (1951), we found that the amounts received were not restricted as           
          to use or disposition, but rather were paid in consideration for            
          the taxpayer's promise to furnish designated advertising material           
          and services; thus, we held that such amounts constituted gross             
          income to the taxpayer.  Id. at 39-40.  In so holding, we noted             
          that the agreements placed no restrictions upon the use of the              
          funds, nor did they indicate that the recipient was to act "as a            
          depository, conduit, trustee, or agent with respect to * * * [the           
          funds]".  Id. at 39.                                                        
               To determine whether petitioner was a nontaxable                       
          intermediary, we must determine the agreement between the vendors           
          and petitioner.  Ford Dealers Advertising Fund, Inc. v.                     
          Commissioner, supra at 771; Seven-Up Co. v. Commissioner, supra             
          at 977.  This is a question of fact to be determined by examining           
          all the facts and circumstances presented.  Angelus Funeral Home            

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