-34- estate, and, thus, petitioners' exchange was not solely in kind. Gain must be recognized to the extent of such cash received (boot). See sec. 1031(b). The excess proceeds must be taken into account as boot because the replacement property, 29 Hastings, cost IEC less than the proceeds available from the disposition of the relinquished property. By using the excess proceeds to increase their equity in 29 Hastings (by reducing the mortgage) instead of receiving the excess proceeds outright, petitioners attempted to avoid treating the excess proceeds as property not of like kind. That petitioners, not IEC, agreed to pay down the mortgage on 29 Hastings is indicative of petitioners' control over the excess proceeds. "'The power to dispose of income is the equivalent of ownership of it. The exercise of that power to procure the payment of income to another is the enjoyment, and hence the realization, of the income by him who exercises it.' * * * [The taxpayer's] failure to receive cash was entirely due to his own volition." Murphy v. United States, 992 F.2d 929, 931 (9th Cir. 1993) (quoting Helvering v. Horst, 311 U.S. 112, 118 (1940)). Petitioners realized gain of over $176,000 and, thus, must recognize gain on the exchange equal to $36,335.11. Sec. 1031(b). Unreported Income--Unemployment Compensation Respondent determined that petitioners failed to report $4,606 of unemployment compensation that petitioner receivedPage: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Next
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