Gerald A. and Henrietta V. Rauenhorst - Page 17




                                       - 17 -                                         
          not legally bound and cannot be compelled to sell the contributed           
          property, the anticipatory assignment of income doctrine does not           
          apply.                                                                      
               Respondent argues that petitioners are not entitled to                 
          judgment as a matter of law and that genuine issues of material             
          fact remain for trial.  Respondent argues that the question                 
          whether the donees were bound or could be legally compelled to              
          surrender their NMG warrants is not “the critical issue” to be              
          resolved and, accordingly, neither Carrington v. Commissioner,              
          supra, nor Rev. Rul. 78-197, supra, controls this case.  It is              
          respondent’s position that “the critical issue” in this case is             
          “a factual one”:  whether petitioners’ rights to receive the                
          proceeds of the stock transaction involving WCP “ripened to a               
          practical certainty” at the time of the assignments.  Respondent            
          relies on Ferguson v. Commissioner, 174 F.3d 997 (9th Cir. 1999),           
          Jones v. United States, supra, Kinsey v. Commissioner, 477 F.2d             
          1058 (2d Cir. 1973), affg. 58 T.C. 259 (1972), Hudspeth v. United           
          States, 471 F.2d 275 (8th Cir. 1972), and Estate of Applestein v.           
          Commissioner, supra.                                                        
               Respondent purports to distinguish both Carrington and Rev.            
          Rul. 78-197, supra, on the facts of the case and the ruling.  To            
          that end, he contends that Carrington and Rev. Rul. 78-197,                 
          supra, are not inconsistent with the cases he relies upon above.            
          Respondent claims that in this case, and the cases upon which he            






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