Alice Berger, et al. - Page 72

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          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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