Perry Funeral Home, Inc. - Page 21

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          cancellations was so low that the right should be disregarded, we           
          emphasize that it is the bona fide existence of such a right, not           
          the exercise or frequency of exercise, which controls.  Because             
          the cancellation right is State granted,6 we do not face a                  
          situation where the outcome might implicate questions concerning            
          the nature and legitimacy of the bargain between particular                 
          parties.  Also, we would be hard pressed to say that the right              
          here was illusory when cancellations did occur, and corresponding           
          refunds were given, in the course of petitioner’s business.                 
               The consequence of this fixed right is that, to the extent             
          Commissioner v. Indianapolis Power & Light Co., 493 U.S. at 210,            
          identifies an advance payment as one which protects against the             
          risk that the buyer will back out before the seller has a chance            
          to perform, the preneed contracts and payments fail to serve that           
          function.  Moreover, the practical reality of the funeral                   
          services business renders this situation analogous to the factual           


               6 Although the early case of Angelus Funeral Home v.                   
          Commissioner, 47 T.C. 391 (1967), affd. 407 F.2d 210 (9th Cir.              
          1969), expressly dealt only with whether amounts should be                  
          excluded from income as trust funds and did not consider a                  
          deposit rationale, the facts and result support our analysis                
          here.  In that case, payments made under the mortuary’s revised             
          preneed contracts were deemed taxable upon receipt (for lack of             
          trust), id. at 398, and would not appear to have been otherwise             
          excludable as deposits.  The Court noted that such refunds as the           
          mortuary gave were made “voluntarily”, and it “was not obligated            
          to refund any moneys collected pursuant to the terms of the                 
          contracts”.  Id. at 394.  Nor, in any event, does it appear that            
          the mortuary raised refundability as a defense to accrual of the            
          income from the revised contracts.  Id. at 397-299; see also                
          Angelus Funeral Home v. Commissioner, 407 F.2d at 213-214.                  




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