Raymond St. Laurent - Page 16

                                       - 16 -                                         
          time the identification was made,5 neither petitioner nor his               
          adviser was on notice that the Commissioner would take the                  
          position that the number of replacement properties that could be            
          identified pursuant to the statute generally would be limited to            
          three.  Consequently, a trap for unwary taxpayers was set.6                 
               We also do not accept respondent’s contention that                     
          petitioner’s identification of replacement properties did not               
          satisfy section 1031(a)(3)(A) because the determination of the              
          particular replacement property or properties to be received was            
          not based on contingencies beyond the control of the parties to             
          the exchange.  As noted above, the legislative history relied on            
          by respondent states:  “It is anticipated that the designation              
          requirement will be satisfied if * * * the particular property to           
          be transferred will be determined by contingencies beyond the               
          control of both parties.”  H. Conf. Rept. 98-861, supra at 866,             
          1984-3 C.B. (Vol. 2) at 120.  As we stated above, we believe that           
          Congress was merely illustrating that a contingent identification           

          5                                                                           
               We note that the proposed regulations setting forth the                
          Commissioner’s construction of the statute and legislative                  
          history were not published until May 16, 1990, after the                    
          transactions in issue occurred.  Sec. 1.1031(a)-3, Proposed                 
          Income Tax Regs., 55 Fed. Reg. 20282.                                       
          6                                                                           
               The difficulty taxpayers faced in interpreting the                     
          legislative history has been noted by at least one commentator.             
          Wasserman, “Mr. Mogul’s Perpetual Search for Tax Deferral:                  
          Techniques and Questions Involving Section 1031 Like-Kind                   
          Exchanges In a World of Changing Tax Alternatives”, 65 Taxes 975,           
          1000 n.211 (1987).                                                          




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

Last modified: May 25, 2011