William T. and Nicole L. Gladden - Page 19




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               In applying the P.G. Lake, Inc. limitation on what property             
          qualifies as a capital asset, courts generally consider the                  
          entire economics of a transaction, as suggested by Dresser                   
          Indus., Inc. in the above quotation, and evaluate all of the                 
          rights of the taxpayer, as well as all of the risks and                      
          obligations of the taxpayer associated with ownership of the                 
          property before the transfer.  For example, in an attempt to                 
          explain P.G. Lake, Inc., we stated in Guggenheim v. Commissioner,            
          46 T.C. 559 (1966)--                                                         

                    The Court in Lake was faced with the problem                       
               whether a transfer of part of a capital asset is itself                 
               the transfer of a capital asset.  That part was defined                 
               and delineated by the taxpayer in such a manner as to                   
               consist essentially of only the rights to income.  The                  
               transferee assumed few of the risks identified with the                 
               holding of a capital asset; he assumed only a nominal                   
               risk of his oil payment right decreasing in value and                   
               none of the possibility of the oil payment right                        
               increasing in value.  On the other hand, the taxpayer,                  
               after the transfer, retained essentially all of the                     
               investment risks involved in his greater interest to                    
               the same extent as before the transfer.  [Id. at 569.]                  

          The above statement implies that whether investment risks are                
          associated with contract rights transferred is a particularly                
          relevant consideration in determining whether the rights are to              
          be treated as capital assets.                                                
               In Commissioner v. Ferrer, 304 F.2d 125, 130 (2d Cir. 1962),            
          revg. in part and remanding 35 T.C. 617 (1961), the Court of                 
          Appeals for the Second Circuit concluded, among other things,                
          that where a taxpayer's “bundle of rights” reflected “something              
          more than an opportunity, afforded by contract, to obtain                    


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