J. David Golub - Page 22




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          cannot be ascertained, the original transaction may be considered            
          open and later payments treated as capital gains, as they would              
          have been if received at the time of the liquidation.  See Waring            
          v. Commissioner, 412 F.2d 800, 801 (3d Cir. 1969), affg. per                 
          curiam T.C. Memo. 1968-126.  In petitioner’s case, however, the              
          property he received was cash, determined on the basis of prices             
          of publicly traded stock.  There is no reason to treat the sale              
          of stock as an open transaction.  Moreover, petitioner received              
          the sale proceeds from the stock under a claim of right and                  
          without restriction as to their disposition.  He himself chose to            
          engage in litigation that, however improbably, might affect the              
          results of the sale.  Under these circumstances, his receipt of              
          income is a fortiori taxable in the year of receipt.  See sec.               
          451(a); Hope v. Commissioner, 471 F.2d 738, 742 (3d Cir. 1973),              
          affg. 55 T.C. 1020 (1971).                                                   
               C.  Income on Payment of Indebtedness                                   
               In general, a payment made in satisfaction of a person’s                
          debt is income to that person.  See Old Colony Trust Co. v.                  
          Commissioner, 279 U.S. 716 (1929).  Thus the amounts Kidder                  
          Peabody retained to pay off petitioner’s obligations were income             
          to petitioner.  Here, Kidder Peabody retained $141,577.37                    
          pursuant to its contractual right to offset petitioner’s margin              
          obligations.  These margin obligations were consistently                     
          reflected as a “net debit balance” in Kidder Peabody’s statements            





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