Richard L. Hutcheson and Deloris A. Hutcheson - Page 14

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            involuntary conversion pursuant to section 1033 is statutory, not                             
            defined by the common law.  Indeed, it has even been stated that                              
            "Congress clearly intended to extend the benefits of section 1033                             
            and its predecessor only to public takings and casualty-like                                  
            conversions, and the limitation of its benefits to involuntary                                
            conversions--i.e., those 'wholly beyond control of the one whose                              
            property has been taken'--reflects that intent."  Wheeler v.                                  
            Commissioner, 58 T.C. 459, 463 (1972).                                                        
                  In addition to their common-law conversion argument,                                    
            petitioners treat "seizure", defined by them as "to take by                                   
            force," as equivalent to theft.  Petitioners seek to compare                                  
            themselves to the taxpayer in Rev. Rul. 66-355, 1966-2 C.B. 302.                              
            There, the taxpayer's financial manager pledged shares of the                                 
            taxpayer's stock to a bank, without the taxpayer's permission, to                             
            secure the manager's personal loan.  The bank subsequently sold                               
            the shares to liquidate the loan.  Id. at 302.  The ruling holds                              
            that the manager's actions amounted to theft for purposes of                                  
            section 1033.  Once again, petitioners' situation is quite                                    
            different.  Despite the settlement between Merrill Lynch and                                  
            petitioners, Merrill Lynch has never agreed, and petitioners have                             
            not demonstrated, that Merrill Lynch was at fault civilly, much                               
            less criminally.  At most, there was only a mutual mistake of                                 
            fact between petitioner and Merrill Lynch.  Petitioners have                                  
            failed to establish that an involuntary conversion has occurred.                              
            Cf.  Hope v. Commissioner, 55 T.C. at 1033-1035.                                              




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