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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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