- 72 - received, rather than be taxed on the entire gain in the year of sale. See Leon H. Perlin Co. v. Commissioner, T.C. Memo. 1993-79. Alice Berger claims installment treatment of her entire gain from the sale of Woodbine. Respondent asserts that the sale on November 17, 1989, of Woodbine was a dealer disposition and therefore does not qualify as an installment sale under section 453.19 The installment method is not available for dispositions of personal property of a kind required to be included in the inventory of the taxpayer on hand at the close of the taxable year. Sec. 453(b)(2)(B); sec. 15A.453-1(b)(4), Temporary Income Tax Regs., 46 Fed. Reg. 10710 (Feb. 4, 1981). The installment method is also not available for a dealer disposition, sec. 453(b)(2)(A), which includes any disposition of real property held by the taxpayer for sale to customers in the ordinary course of trade or business. Sec. 453(b)(2)(A), (l). It would therefore appear to be immaterial for our purposes whether the Woodbine burial rights are classified as personal property or real property.20 19Respondent has not determined or argued for the application of sec. 453(g) or (e), concerning the sale of depreciable property between related persons, and second disposition by related persons, respectively. See generally Shelton v. Commissioner, 105 T.C. 10 (1995). 20Whether the sale of burial rights constitutes personalty or realty is generally determined under State law. National Memorial Park, Inc. v. Commissioner, 145 F.2d 1008 (4th Cir. 1944). The Woodbine property and business is located in New Jersey. Under New Jersey case law and statutory law, title to a cemetery plot is a legal estate in real property. N.J. Stat. Ann. sec. 8A:7-2 (West 1987 & Supp. 1995) (burial space passes to (continued...)Page: Previous 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Next
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