Brian L. and Carole J. Nahey - Page 2

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               that the settlement of the lawsuit constituted a sale or               
               exchange for purposes of the capital gain provisions.                  
               Held:  The settlement of the lawsuit between the S                     
               corporations and X did not constitute a sale or exchange               
               pursuant to sec. 1222, I.R.C., and thus the settlement                 
               proceeds received by the S corporations and passed                     
               through to P constitute ordinary income.                               

               Robert A. Schnur and Joseph A. Pickart, for petitioners.               
               George W. Bezold and Christa A. Gruber, for respondent.                


               JACOBS, Judge:  Respondent determined a $185,833 deficiency in         
          petitioners' 1992 Federal income taxes.                                     
               The deficiency herein arises from the parties' dispute over            
          the characterization of settlement proceeds from a lawsuit that was         
          brought by a corporation whose assets, including the lawsuit, were          
          purchased by petitioners' two S corporations.  The sole issue we            
          must decide is whether the settlement proceeds received by the S            
          corporations (and passed through to petitioners) constitute                 
          ordinary income, as respondent contends, or long-term capital gain,         
          as petitioners contend.1                                                    
               All section references are to the Internal Revenue Code as in          
          effect for the year in issue.                                               


               1    In their petition contesting respondent's determination           
          that the settlement proceeds received by the S corporations (and            
          passed through to petitioners) constitute ordinary income,                  
          petitioners asserted, as an alternative position, that the S                
          corporations should have reported the settlement proceeds as a              
          nontaxable return of capital.  In their posttrial brief,                    
          petitioners abandoned this alternative argument.                            




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