David K. and Elizabeth Simpson - Page 6

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                    business for services rendered or from the                        
                    sale of property described in paragraph (1);                      
                         (5) a publication of the United States                       
                    Government (including the Congressional Record)                   
                    which is received from the United States                          
                    Government or any agency thereof, other than by                   
                    purchase at the price at which it is offered for                  
                    sale to the public, and which is held by-–                        
                              (A) a taxpayer who so received such                     
                         publication, or                                              
                              (B) a taxpayer in whose hands the basis                 
                         of such publication is determined, for                       
                         purposes of determining gain from a sale or                  
                         exchange, in whole or in part by reference to                
                         the basis of such publication in the hands of                
                         a taxpayer described in subparagraph (A).                    
          Petitioners argue that (1) the sale of a lottery award is the               
          sale of a capital asset, (2) a lottery ticket falls within the              
          definition of a capital asset, (3) assets similar to lottery                
          tickets are classified as capital assets, and (4) recent court              
          decisions regarding the sale of lottery proceeds are incorrect.5            



               5Although petitioners’ primary argument is that the right to           
          receive future annual lottery payments is a capital asset, it               
          appears that they are also arguing that the winning lottery                 
          ticket is a capital asset and that somehow the lump-sum payment             
          received from Singer is therefore capital gain.  Petitioners did            
          not assign the lottery ticket to Singer; rather, they                       
          relinquished the lottery ticket to the State of California in               
          order to claim the lottery prize and secure the right to the 20             
          annual installments of $787,000.  The right to a portion of some            
          of the annual lottery payments, not the actual lottery ticket,              
          was subsequently assigned to Singer in exchange for the lump-sum            
          payment of $4,485,000.  It is this right to future lottery                  
          payments that is the focus of our inquiry, not the actual lottery           
          ticket.  See Johns v. Commissioner, T.C. Memo. 2003-140.                    





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