Rameau A. and Phyllis A. Johnson - Page 37

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            Commissioner, T.C. Memo. 1983-713 (refundable purchase price of                           
            multiyear television service policy contract); J.J. Little & Ives                         
            Co. v. Commissioner, T.C. Memo. 1966-68 (receipts from magazine                           
            sales under contracts entitling purchaser to return for credit                            
            refund); Smith v. Commissioner, T.C. Memo. 1962-128, affd. 324                            
            F.2d 725 (9th Cir. 1963) (gain from sale of restaurants where                             
            buyer entitled to return assets under certain circumstances).                             
                  On the other hand, there are numerous precedents upholding                          
            the taxpayer's characterization of a refundable payment as a                              
            deposit in the absence of a binding agreement to apply the sum to                         
            the purchase of specific goods and services.  Consolidated-Hammer                         
            Dry Plate & Film Co. v. Commissioner, 317 F.2d 829 (7th Cir.                              
            1963), affg. in part and revg. in part T.C. Memo. 1962-97                                 
            (progress payments made under construction contract prior to                              
            final determination of work specifications and amount due for                             
            work); Clinton Hotel Realty Corp. v. Commissioner, 128 F.2d 968,                          
            969, 970 (5th Cir. 1942), revg. 44 B.T.A. 1215 (1941) (lease                              
            security deposits, where "If the only agreement was that it                               
            should apply to the last year's rent, it would of course be rent                          
            paid in advance", but "there were many things to which it might                           
            become applicable besides the * * * [last year's] rent.");                                
            Veenstra & DeHaan Coal Co. v. Commissioner, 11 T.C. 964 (1948)                            
            (customer advances used to buy inventory prior to formation of                            
            definite sale contract).                                                                  





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