- 15 - Respondent contends that, since the money was directly released to petitioners for their use, the amounts should be included in gross income when received. However, in Kang v. Commissioner, supra, the earnest money was deposited into the taxpayers’ personal checking account. Additionally, respondent contends that petitioners were under a contingent liability to repay the funds to CDC, and that to avoid application of the claim of right doctrine, the recipient must recognize in the year of receipt an existing and fixed obligation to repay the amount received and must make provisions for repayment. Hope v. Commissioner, 55 T.C. 1020, 1030 (1971), affd. 471 F.2d 738 (3d Cir. 1973). A restriction on the disposition or the use of the funds may also prevent the application of the claim of right doctrine. Commissioner v. Indianapolis Power & Light Co., 493 U.S. 203, 209 (1990). We do not find that petitioners were merely under a contingent obligation to repay the deposits to CDC as respondent contends. There was an existing and fixed obligation for petitioners to repay the deposits in the event that they breached or “for any other reason other than a default by Buyer”. Indeed, petitioners did repay an amount close to the amount CDC deposited upon execution of the Mutual Release. Petitioners did not have an unconditional right to retain the deposits. Bourne v. Commissioner, supra at 649. The cases that respondent relies on pertain to items that would normally be included in income upon receipt even though itPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011