Stephen R. and Mary K. Herbel - Page 36

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             to be purchased in the future or is a refundable deposit                 
             in the nature of a loan.  The parties agree that an advance              
             payment is includable in income in the year received but                 
             that a deposit in the nature of a loan is not income.  See               
             Oak Industries, Inc. v. Commissioner, 96 T.C. 559, 563-564               
             (1991).  The question presented by petitioners' motion for               
             summary judgment is whether the subject payment of                       
             $1,850,000 is the latter and not the former.                             
                  As the Supreme Court noted in the leading case on this              
             question:  "The distinction between a loan and an advance                
             payment is one of degree rather than of kind."  Commis-                  
             sioner v. Indianapolis Power & Light Co., 493 U.S. at 208.               
             Both types of transactions confer economic benefits on the               
             recipient, but economic benefits qualify as income only                  
             if they are "'undeniable accessions to wealth, clearly                   
             realized, and over which the taxpayers have complete                     
             dominion.'"  Id. at 209 (quoting Commissioner v. Glenshaw                
             Glass Co., 348 U.S. 426, 431 (1955)).  The key to                        
             determining whether a taxpayer enjoys "complete dominion"                
             over a given sum is not whether the taxpayer has                         
             unconstrained use of the funds during some period, but                   
             whether the taxpayer "has some guarantee that he will be                 
             allowed to keep the money."  Id. at 210.                                 
                  In the case of a loan, the recipient has no such                    
             guaranty because the funds are acquired subject to an                    






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