David Dobrich and Naomi Dobrich - Page 19

                                       - 19 -                                         

          1990 under the installment method of section 453.  Section 453              
          permits taxpayers to report gain from the sale of property in the           
          year payment is received.  Payment includes amounts either                  
          actually or constructively received by the taxpayer.  Sec.                  
          15A.453-1(b)(3)(i), Temporary Income Tax Regs., 46 Fed. Reg.                
          10710 (Feb. 4, 1981).  Taxpayers are not entitled to report gain            
          under the installment method if they directly or indirectly                 
          control the sales proceeds or receive the economic benefit                  
          therefrom.  Roberts v. Commissioner, 643 F.2d 654, 656 (9th Cir.            
          1981) (citing Rushing v. Commissioner, 441 F.2d 593, 598 (5th               
          Cir. 1971), affg. 52 T.C. 888 (1969)), affg. 71 T.C. 311 (1978);            
          Estate of Silverman v. Commissioner, 98 T.C. 54, 64 (1992).                 
               Respondent contends that petitioners are not entitled to use           
          the installment sale method because petitioners constructively              
          received the sales proceeds and received economic benefits from             
          the proceeds in 1989.  Respondent argues that petitioners                   
          obtained control over the sales proceeds when they were deposited           
          into the Clack Bros.' trust account.  The funds were used to make           
          earnest money deposits on replacement properties that petitioners           
          wanted to acquire, and petitioners negotiated the purchase price            
          on the properties.  Based on these facts, respondent contends               
          that petitioners directed how and when the sale proceeds were               
          spent and, thus, had control over the sales proceeds.                       
               Respondent argues that a seller cannot defer gain                      
          recognition under the installment method by placing the purchase            



Page:  Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  Next

Last modified: May 25, 2011