- 26 - citing section 1.451-1(a), Income Tax Regs., argues that Malibu is required under that method of accounting to include the payment in income in the year of receipt. Respondent acknowledges that section 1.451-5(g), Income Tax Regs., provides an exception to the general rule in section 1.451-1(a), Income Tax Regs., for certain advance payments treated as mortgage loans pursuant to section 636(a). However, respondent argues that the subject payment is not eligible for the exception for two reasons. First, it is not an “advance payment”, as defined by section 1.451-5(a), Income Tax Regs., because Malibu is not a taxpayer using an accrual method of accounting as required by that provision. Second, it is not a “production payment” for purposes of section 636(a) because "recoupment by Arkla can occur by gas deliveries or by a cash repayment (but not by cash payments from the sale of the minerals), the payment from Malibu fails to satisfy the Treas. Reg. � 1.636-3(a) criteria". Finally, respondent asserts that "there are genuine issues as to material facts", and that summary judgment is not proper. See Rule 121. All Rule references are to the Tax Court Rules of Practice and Procedure. In support of that position, respondent relies on two affidavits attached to respondent’s objection, one by an employee of Arkla'sPage: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
Last modified: May 25, 2011