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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
772.
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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