Leo and Alla Goldberg - Page 56

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          proceeds for it are reportable as taxable income or as a                    
          nontaxable return of capital and (2) if the option proceeds are             
          income to the grantor of the option, the character of the income            
          as capital or ordinary must be determined.  See Old Harbor Native           
          Corp. v. Commissioner, 104 T.C. 191, 200 (1995).  These                     
          considerations remain even though the grantor retains the option            
          amount whether or not the option is exercised.  See Hicks v.                
          Commissioner, T.C. Memo. 1978-373.  Petitioners, although they              
          had control over and had unfettered use of the $10,000 in 1989,             
          had income in the year the option lapsed, 1991.                             
          15 Hastings--Lease Versus Sale                                              
               We now must decide whether the "Lease Option" executed on              
          November 1, 1989, and the "Real Estate Purchase Option" executed            
          on November 3, 1989, effected a sale or a lease with an option to           
          buy.  If we decide that the agreements effected a sale, we must             
          then decide the proper characterization of the payments received            
          by petitioners and the expenses claimed by petitioners.                     
               Respondent argues that petitioners mischaracterized the                
          agreement by reporting the related items as though the agreement            
          were a lease instead of a sale.  Petitioners contend that they              
          properly characterized the transaction as a lease with an option.           
          In this instance, we are not required to decide which of the two            
          agreements, the Lease Option or the Real Estate Purchase Option,            
          represented the bargain between petitioners and the Woods.                  
               Whether a sale is complete for Federal tax purposes depends            
          on all of the facts and circumstances.  Derr v. Commissioner, 77            



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