Mark J. Steel and Connie J. Steel - Page 10




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          essential in this case.  Whether collectors on claims are                   
          “sellers” or “purchasers” in prior transactions is a matter which           
          was irrelevant in Nahey and which is irrelevant in this case,               
          where the taxpayer is entitled to and receives proceeds in                  
          collection of a claim or in the settlement of a lawsuit.  Indeed,           
          as in Nahey v. Commissioner, supra at 266 n.4, our focus is on              
          the receipt of settlement proceeds, not on prior or intervening             
          transactions.  See also Nahey v. Commissioner, 196 F.3d at 868-             
          869; Pounds v. United States, supra at 349; Fahey v.                        
          Commissioner, 16 T.C. 105, 108 (1951).                                      
               On the basis of the statutory mandate of section 1222(3),              
          and our recent opinion in Nahey v. Commissioner, 111 T.C. 256               
          (1998), we conclude that the settlement of the lawsuit in this              
          case was not a sale or exchange.8  Accordingly, the proceeds                
          originating from the settlement of the lawsuit were not received            
          in a sale or exchange.                                                      
               Petitioners argue that the holding in Nahey v. Commissioner,           
          111 T.C. 256 (1998), is not applicable to this case, because they           

               8In Helvering v. William Flaccus Oak Leather Co., 313 U.S.             
          247, 251 (1941), the Court stated: “Congress has expressly                  
          specified the ambiguous transactions which are to be regarded as            
          sales or exchanges for income tax purposes.”  Implicit in this              
          statement is that certain ambiguous transactions are not                    
          considered sales or exchanges unless expressly specified by                 
          Congress.  Congress has identified several transactions which are           
          to be regarded as sales or exchanges.  See, e.g., secs. 302,                
          1234(a)(1) and (2), 1234A, 1241, 1271(a)(1).  However, Congress             
          has not identified the settlement of a lawsuit as a sale or                 
          exchange for capital gain purposes.                                         





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