- 21 - 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.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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