Lee G. Gale - Page 27




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          placed on the use of the settlement proceeds after payment by               
          United Ready Mixed, whether the restriction was placed on the               
          funds voluntarily by petitioner or through acts by petitioner’s             
          creditors, does not delay petitioner’s receipt of the income for            
          income tax purposes.  See Harris v. Commissioner, 477 F.2d 812              
          (4th Cir. 1973) (receipt even though funds placed in escrow due             
          to taxpayer’s incompetency), revg. 56 T.C. 1165 (1971); Williams            
          v. Commissioner, 219 F.2d 523 (5th Cir. 1955) (receipt when                 
          payments made to escrow set up by taxpayer); Sproull v.                     
          Commissioner, 16 T.C. 244 (1951) (receipt on payment to trust),             
          affd. 194 F.2d 541 (6th Cir. 1952); cf. Reed v. Commissioner, 723           
          F.2d 138 (1st Cir. 1983) (no receipt where escrow arrangement was           
          bona fide deferred payment agreement between buyer and seller);             
          Busby v. Commissioner, 679 F.2d 48 (5th Cir. 1982) (no receipt to           
          seller where payment was made to buyer’s agent).                            
               Respondent admits that at trial he conceded that petitioner            
          did not have receipt of the United Ready Mixed settlement                   
          proceeds in 1992, because of the restriction placed on the funds            
          by petitioner’s attorney.  However, in his reply brief,                     
          respondent repudiated his concession,13 relying on Sullivan v.              

               13In his reply brief, respondent states:                               
               In view of Sullivan, respondent has reexamined the                     
               position taken at trial and on opening brief with                      
               respect to the timing of the taxability of the Ready                   
               Mixed settlement proceeds.  Respondent is changing his                 
               position in this case to be consistent with the holding                
                                                             (continued...)           




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