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disaster, the cluster home would revert to petitioner without
repurchase by petitioner, but the owner received the insurance
proceeds. Additionally, petitioner controlled whether it would
be obligated to repurchase through its power to grant or deny
permission to convey the property. This "obligation" to
repurchase was an advantage rather than a disadvantage in that
petitioner, by selling the cluster homes itself, reaped the
difference between the repurchase amounts and the higher resale
prices. Where petitioner repurchased cluster homes and resold
them, petitioner received all of the profits; this tends to weigh
against the transactions' being sales. However, while the
cluster home or condominium owner did not receive the benefit of
any appreciation in the fair market value of the unit, the owner
was assured of receiving at least 76 percent of the original
purchase price. In the event that the real estate market for
retirement homes collapsed, petitioner could bear any loss.
Thus, petitioner and the owner each had both a benefit and a
detriment in the repurchase arrangement. While the cluster home
or condominium owner had to forgo the benefit of possible
appreciation, he or his estate was assured of receiving at least
76 percent of his original purchase price, an assurance that
aging members of a retirement community might find attractive,
particularly compared to the usual church-sponsored retirement
communities that required large, nonrefundable upfront payments.
Some of the above aspects of this transaction support
petitioner's proposed characterization while others support
respondent's. Under these circumstances, we believe that the
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