Gerald A. and Henrietta V. Rauenhorst - Page 40




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          donees might conceivably have been forced to surrender their                
          stock warrants by merger, liquidation, or dissolution, absent               
          some plan or other corporate action to that effect.                         
               Petitioners submitted affidavits in support of their                   
          position regarding a material issue of fact.  Respondent makes              
          unsupported and nonspecific allegations in response to the                  
          statements in the affidavits.  Respondent points to nothing in              
          the record nor does he allege facts which raise a genuine issue             
          of material fact regarding whether the donees were legally bound,           
          or could be compelled, to sell the stock warrants at the time of            
          the assignments by petitioners.  Respondent has had ample time              
          for investigation and does not request additional time for                  
          discovery.  This matter is now ripe for decision, and we hold               
          that petitioners are entitled to judgment as a matter of law on             
          the anticipatory assignment of income issue.                                
               5. Conclusion                                                          
               Rev. Rul. 78-197, 1978-1 C.B. 83, is contrary to                       
          respondent’s litigation position in this case.  Instead of                  
          accepting the legal principles articulated in that ruling,                  
          respondent’s counsel contends that the Commissioner is not bound            
          by revenue rulings, and his reliance on Blake v. Commissioner,              
          697 F.2d at 480-481, demonstrates that he is taking the position            
          in this case that the ruling is incorrect.                                  








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