Perry Funeral Home, Inc. - Page 20

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          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                
               In addition, in view of respondent’s comments on brief                 
          suggesting that petitioner’s historical percentage of                       

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