Perry Funeral Home, Inc. - Page 18

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               furnished goods or services.  But an advance payment                   
               does much more: it protects against the risk that the                  
               purchaser will back out of the deal before the seller                  
               performs.  From the moment an advance payment is made,                 
               the seller is assured that, so long as it fulfills its                 
               contractual obligation, the money is its to keep.                      
               Here, in contrast, a customer submitting a deposit made                
               no commitment to purchase a specified quantity of                      
               electricity, or indeed to purchase any electricity at                  
               all.  IPL’s right to keep the money depends upon the                   
               customer’s purchase of electricity, and upon his later                 
               decision to have the deposit applied to future bills,                  
               not merely upon the utility’s adherence to its                         
               contractual duties. * * *                                              
                         *    *    *    *    *    *    *                              
               It is this element of choice that distinguishes an                     
               advance payment * * * The individual who makes an                      
               advance payment retains no right to insist upon the                    
               return of the funds; so long as the recipient fulfills                 
               the terms of the bargain, the money is its to keep.                    
               The customer who submits a deposit to the utility * * *                
               retains the right to insist upon repayment in cash; he                 
               may choose to apply the money to the purchase of                       
               electricity, but he assumes no obligation to do so, and                
               the utility therefore acquires no unfettered “dominion”                
               over the money at the time of receipt.  [Id. at 210-                   
               212; fn. ref. omitted.]                                                
               This Court, in applying the reasoning of Commissioner v.               
          Indianapolis Power & Light Co., supra, has similarly emphasized             
          the importance of which party controls the conditions under which           
          repayment or refund of the disputed amounts will be made.  See,             
          e.g., Herbel v. Commissioner, 106 T.C. 392, 413-414 (1996), affd.           
          129 F.3d 788 (5th Cir. 1997); Highland Farms, Inc. v.                       
          Commissioner, 106 T.C. 237, 251-252 (1996); Kansas City S.                  
          Indus., Inc. v. Commissioner, 98 T.C. 242, 262 (1992); Michaelis            
          Nursery, Inc. v. Commissioner, T.C. Memo. 1995-143.  We have                

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