Ismat M. Abeid - Page 5

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          871(j).  Annual payments of State lottery winnings are treated as           
          gambling winnings.  Rusnak v. Commissioner, T.C. Memo. 1987-249;            
          see also sec. 3402(q)(3)(B)(treating certain proceeds from wagers           
          in State-conducted lotteries as gambling winnings).3                        
               The provisions of the Internal Revenue Code are applied to a           
          taxpayer, however, “with due regard to any treaty obligation of             
          the United States which applies to such taxpayer.”  Sec.                    
          894(a)(1).  The U.S.-Israel Income Tax Treaty, Hein’s No. KAV               
          971, at xxii, provides:                                                     
                     Article 20-–Private Pensions and Annuities                       
                        *    *     *     *     *     *    *                           
                    (2) Alimony and annuities paid to an individual                   
               who is a resident of one of the Contracting States                     
               shall be taxable only in that Contracting State.                       
                        *    *    *     *     *     *     *                           
                    (5) The term “annuities”, as used in this Article,                
               means a stated sum paid periodically at stated times                   
               during life, or during a specified number of years,                    
               under an obligation to make the payments in return for                 
               adequate and full consideration (other than services                   
               rendered).                                                             

               Petitioner’s position is that the payments he received                 


               3 We note that whether annual payments of State lottery                
          winnings are categorized under sec. 871(a)(1) as “annuities” (as            
          the term is used in that section) or as “fixed or determinable              
          annual or periodical gains, profits, and income” is immaterial in           
          the instant case, as the tax imposed by sec. 871(a)(1) applies to           
          either category.  As discussed hereinafter, the result in this              
          case turns upon the meaning of “annuities” as used in the U.S.-             
          Israel Income Tax Treaty.                                                   





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