Rameau A. and Phyllis A. Johnson - Page 33

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                  not merely upon the utility's adherence to its                                      
                  contractual duties.  Under these circumstances, IPL's                               
                  dominion over the funds is far less complete than is                                
                  ordinarily the case in an advance-payment situation.                                
            *   *   *   *   *   *   *                                                                 
                  The customer who submits a deposit to the utility * * *                             
                  retains the right to insist upon repayment in cash; he                              
                  may choose to apply the money to the purchase of                                    
                  electricity, but he assumes no obligation to do so, and                             
                  the utility therefore acquires no unfettered "dominion"                             
                  over the money at the time of receipt.  [Commissioner                               
                  v. Indianapolis Power & Light Co., supra at 210-212;                                
                  fn. ref. omitted.]                                                                  
                  In subsequent cases this Court has had occasion to apply the                        
            reasoning of Indianapolis Power & Light to analogous situations.                          
            Oak Indus., Inc. v. Commissioner, 96 T.C. 559 (1991), concerned                           
            the tax treatment of a subscription television operator that                              
            collected a security deposit from all subscribers.  Upon                                  
            termination of service at any time by either party, if no amounts                         
            were due from the subscriber, the television company was required                         
            to refund the entire deposit.  A majority of subscribers chose to                         
            apply at least a portion of the deposit to pay monthly service                            
            charges on their final bill.  In holding that the deposits were                           
            not taxable income to the television company, we reasoned that                            
            the subscribers controlled whether the deposit would be refunded                          
            or applied against amounts due for services.  The subscriber made                         
            no commitment to purchase a specified amount of services from the                         
            television company, or indeed to purchase any services at all.                            







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