Andrew E. Blanche, Jr., and Cynthia D. Blanche - Page 21

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          closing, the Hewitts bore the risk of loss with respect to the              
               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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