Florida Industries Investment Corporation and Subsidiaries - Page 35




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          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 any                 




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