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closing, the Hewitts bore the risk of loss with respect to the
property.
Although petitioners had possession of the property as
tenants or lessees, they were not entitled to possession as
owners until the closing date. Under the residential lease
signed by the parties, petitioners were prohibited from: (1)
Subleasing or assigning the Foxbriar property; (2) making any
improvements to the property without written permission; (3)
repairing a vehicle on the property without written permission;
(4) conducting any business on the property, including child
care; (5) permitting more than four vehicles on the property
without written permission; and (6) storing a nonoperative
vehicle on the property. Moreover, the terms and conditions
under which petitioners eventually purchased (or attempted to
purchase) the property from Mrs. Hewitt differed from those
originally set out in the earnest money contract. Analyzing the
facts of the instant case under Texas law and the Fifth Circuit’s
reasoning in Boykin v. Commissioner, 344 F.2d 889 (5th Cir.
1965), the conduct of the parties fails to suggest that
petitioners, for practical purposes, were possessed of the
benefits and burdens of ownership prior to August 1992.
In determining whether the benefits and burdens of ownership
have passed to a purchaser, this Court has often considered
whether the purchasers: (1) Had the right to possess the property
and to enjoy the use, rents, and profits thereof; (2) had the
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