John W. Madden, Jr., et al. - Page 21

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               Respondent contends that the sublease provision of the                 
          Second Lease requires MCA to remit to the Museum 25 percent of              
          its profits derived from any sublease of FGA, and thus the rent             
          is being calculated, in part, based on a percentage of MCA's                
          profits from FGA.  Moreover, respondent asserts that, in 1988,              
          amounts were remitted to the Museum as a result of a Budweiser-             
          sponsored event, and those amounts were in fact calculated under            
          the sublease provisions of the Second Lease.                                
               At the outset, we note that certain rules related to real              
          estate investment trusts are made applicable to the determination           
          of what amounts constitute rent from real property.                         
          Sec. 1.512(b)-1(c)(2)(iii)(b), Income Tax Regs.  Pursuant to                
          section 1.856-4(b)(3), Income Tax Regs., where the rent received            
          under a lease consists of both a fixed amount and an amount based           
          on the income or profits of the lessee, then none of the amounts            
          received qualify as "rents from real property".  However, where             
          the amount received under such a lease includes only the fixed              
          portion of the rent, then that amount qualifies as "rents from              
          real property".  Id.  The evidence indicates that the only                  
          inclusion under the sublease clause occurred in 1988.                       
          Consequently, only the rent paid in 1988 may be subject to UBIT             
          under this theory.                                                          
               As outlined supra, respondent's argument focuses on the                
          sublease provision of the Second Lease, which requires MCA to               
          remit 25 percent of the profits derived from a sublease of FGA.             




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