- 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...)
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