Stephen R. and Mary K. Herbel - Page 38

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             Kansas City S. Industries, Inc. v. Commissioner, 98 T.C.                 
             242 (1992) (deposits charged by railroad to build  side                  
             track); Oak Industries, Inc. v. Commissioner, supra                      
             (security deposit collected by subscription TV company                   
             upon installation of electronic decoder box); Houston                    
             Industries, Inc. v. United States, 32 Fed. Cl. 202 (1994)                
             (fuel cost overrecoveries received by a public utility                   
             company).                                                                
                  On the other hand, if the recipient of the payment                  
             controls the conditions under which the payment will be                  
             repaid or refunded, we have held that the recipient has                  
             some guaranty that it will be allowed to keep the money,                 
             and hence, the recipient enjoys complete dominion over the               
             payment.  Milenbach v. Commissioner, 106 T.C. 184 (1996);                
             Michaelis Nursery, Inc. v. Commissioner, T.C. Memo. 1995-                
             143.  For example, Milenbach v. Commissioner, supra,                     
             involved a payment of $6.7 million by the Los Angeles                    
             Memorial Coliseum Commission to the Los Angeles Raiders.                 
             The agreement under which the payment was made provided                  
             that the money was to be repaid from revenues derived from               
             the operation of suites to be constructed by the Raiders at              
             the Los Angeles Coliseum.  In view of the fact that the                  
             construction of the suites was within the sole control of                
             the Raiders, and the fact that there was no default or                   
             alternative payment provision, we found that the Raiders                 






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