Alice Berger, et al. - Page 50

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          method, the Secretary's consent was not required.  Sec. 1.446-              
          1(e)(2)(ii)(b), Income Tax Regs.                                            
               We now discuss why the different method of accounting for              
          mausoleum crypt sales clearly reflected income.  Sec. 1.446-                
          1(a)(2), Income Tax Regs.  Alice Berger cites Evergreen Cemetery            
          Association v. Burnet, 45 F.2d 667 (D.C. Cir. 1930), affg. 13               
          B.T.A. 638 (1928), for the proposition that "Where forfeiture of            
          the deposit will result from a breach of the contract by the                
          customer, the deposit is taxed in the year of receipt."  Alice              
          Berger asserts that "In Evergreen, the court held that periodic             
          payments received pursuant to contracts for the sale of mausoleum           
          crypts during the construction phase were taxable when received             
          regardless of when construction was completed".  We disagree.               
               The taxpayer in Evergreen Cemetery Association v. Burnet,              
          supra, kept its books on an accrual basis.  The taxpayer had sold           
          crypts in 1920 before its mausoleum was completed, and in 1921,             
          the year the mausoleum was completed.  Purchasers were allowed to           
          pay for crypts over time, and at the end of 1921, not all of the            
          crypts had been paid for in full.  For 1921, the taxpayer                   
          included in income the cash collected during 1920 and 1921 but              
          did not include the unpaid amounts.  This accounting method was             
          improper because "the entire sales price of all crypts sold by it           
          had accrued in the year 1921".  Id. at 669.  Although the court             
          in Evergreen Cemetery Association did not directly address the              
          propriety of including 1920 sales in 1921 gross receipts, it                





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