- 20 - absence of a trust fund), unrestricted use, nonpayment of interest, and later application of the moneys to services are probative but not dispositive in evaluating the existence of complete dominion. Id. at 209-211; Highland Farms, Inc. v. Commissioner, supra at 251; Kansas City S. Indus., Inc. v. Commissioner, supra at 261-262; Oak Indus., Inc. v. Commissioner, 96 T.C. 559, 569-574 (1991); Michaelis Nursery, Inc. v. Commissioner, supra. With respect to the facts before us, here petitioner’s customers, and not petitioner, controlled whether and when any refund of the preneed funds would be made. The regulatory scheme governing preneed funeral contracts expressly affords buyers the right to cancel such contracts at any time. Mass. Regs. Code tit. 239, secs. 4.05, 4.06(8) (2003). Further, while Mass. Regs. Code tit. 239, sec. 4.06(8) (2003), contains a more detailed description of the applicable cancellation procedures in the event that a funeral trust has been established, the express text covers preneed funeral contracts and does not limit this cancellation right to those instances involving a funeral trust. Accordingly, whether or not petitioner placed the preneed funds in trust is not crucial to our analysis of the refundability criterion. In addition, in view of respondent’s comments on brief suggesting that petitioner’s historical percentage ofPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
Last modified: May 25, 2011