- 35 - ferred by the taxpayer without his receipt of, or control over, cash."). On that record, we further find that although the terms of the escrow agreement imposed controls on OIP's access to the escrowed sales proceeds prior to the expiration of 180 days after July 26, 1990, Mr. Hefferan violated those terms and permitted Mr. Canty, acting on behalf of OIP, to control the disbursement of those proceeds prior to the expiration of that 180-day period for purposes other than the acquisition of replacement property. Consequently, the present case is distinguishable from the cases on which petitioners are relying involving taxpayers who did not receive, or have control over, cash in multiparty transactions that the courts characterized as exchanges under section 1031. To support their position that OIP did not have control over the escrowed sales proceeds, petitioners rely on the testimony of Mr. Hefferan and "his clear fiduciary obligations under the ethical canons of the Florida Bar." Although Mr. Hefferan (1) signed the escrow agreement as Interstate's trustee, (2) testified that he understood his position under the escrow agreement to be that of Interstate's trustee, and (3) had fidu- ciary obligations to Interstate as Interstate's trustee, we find certain of Mr. Hefferan's actions with respect to the escrow fund and the escrow agreement to be inconsistent with the terms of that agreement. The record establishes that Mr. Hefferan had no recollection of ever consulting with Mr. Kaplan, Xway's president, or anyPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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