- 6 - Petitioners attribute their success to their evidence that the settlement funds were spent on repairs. This evidence, however, does not address the threshold element of the two section 1033 prerequisites to nonrecognition treatment. To qualify under section 1033, the payment must have been received as compensation for an involuntary conversion of the taxpayer’s property. See sec. 1033(a). Having established that, then it must be shown that the money was expended within a specified period of time for the replacement of the converted property with similar property. See sec. 1033(a)(2)(A) and (B). Only after the threshold question, whether the amount received was compensatory, has been answered is it necessary to consider the issue of how the funds were spent. Although an explanation of both prongs of section 1033 was given in our opinion, petitioners have persisted in their single-minded focus on the repair and replacement aspect. If the character is not clear on the face of a settlement, the characterization of settlement proceeds becomes a factual inquiry, dependent on the payor’s intent when the proceeds were paid. See Hentzel v. Commissioner, T.C. Memo. 1991-277. “[W]hen respondent receives conflicting evidence of the payor’s intent, * * * respondent does not act unreasonably by insisting upon an explanation to clear up the conflict.” Id. Where unexplained facts support respondent’s position and the Court must considerPage: Previous 1 2 3 4 5 6 7 8 9 Next
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