- 36 - 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 anPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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