R. Scot Stokes - Page 5




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               There was filed on behalf of the annuity trust a 1994                  
          fiduciary Federal income tax return on which there was reported             
          no income relating to sale of the pizza business to Beagley and             
          Lundell.                                                                    
               On audit, respondent determined that the annuity trust was a           
          sham and that the $56,063 in proceeds received in 1994 from                 
          Beagley and Lundell relating to sale to them of the pizza                   
          business is to be treated as received by petitioner.3                       

                                      OPINION                                         
               Gross income includes all income from whatever source                  
          derived.  See sec. 61(a).  As a fundamental principle of Federal            
          income tax law, income is taxed to the person who earns the                 
          income.  See United States v. Basye, 410 U.S. 441, 450 (1973);              
          Commissioner v. Culbertson, 337 U.S. 733, 739-740 (1949); Lucas             
          v. Earl, 281 U.S. 111, 114-115 (1930); Holman v. United States,             
          728 F.2d 462, 464 (10th Cir. 1984); Leavell v. Commissioner, 104            
          T.C. 140, 148 (1995).                                                       
               Tax laws do not recognize as valid for tax purposes sham               
          transactions or transactions that have no economic substance.               


          3    The $56,063 received in 1994 ($50,000 downpayment and $6,063           
          in total monthly installment payments) is treated by respondent             
          as taxable income to petitioner based on a gross profits                    
          percentage of .5616 or $31,485.  Also, under secs. 1245 and 1250,           
          on sale of the pizza business depreciation recapture income of              
          $62,426 relating to property of the pizza business is charged by            
          respondent to petitioner as taxable income.                                 




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