- 58 -
Cir. 1959); J.M. Turner & Co. v. Commissioner, 247 F.2d 370, 373
(4th Cir. 1957), revg. and remanding on other grounds 26 T.C. 795
(1956); Floyd v. Scofield, 193 F.2d 594 (5th Cir. 1952); United
States v. Lynch, 192 F.2d 718 (9th Cir. 1951); Commissioner v.
Carter, 170 F.2d 911 (2d Cir. 1948), affg. 9 T.C. 364 (1947); see
also Palmer v. Commissioner, 29 T.C. 154 (1957) (clear reflection
of income trumps nonrecognition under section 351, whereas
section 351 generally trumps assignment of income, Rev. Rul. 80-
198, 1980-2 C.B. 113, 114-115 (citing Hempt Bros. v. United
States, 490 F.2d 1172 (3d Cir. 1974))), affd. 267 F.2d 434, 438-
439 (9th Cir. 1959). See generally Bittker & Eustice, Federal
Income Taxation of Corporations and Shareholders, par. 3.17, at
3-82 to 3-86 (6th ed. 1994).
The termination of Howard Berger's performance obligation to
purchasers of Phase II mausoleum crypts, see sec. 1.451-5(f),
Income Tax Regs., makes it appropriate to apply Jud Plumbing and
section 446(b) to his March 14, 1989 transfer. This is a
situation contemplated by section 1.451-5(f), Income Tax Regs.,
in which "in a taxable year [1989]" Howard's "liability under the
agreement [the Phase II mausoleum crypt sales contracts]
otherwise ends", so as to make it appropriate that "so much of
the advance [payments] as was not includable in his gross income
in preceding taxable years shall be included in his gross income
for such taxable year [1989]".
Any concerns about unfair income triggering and
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