Alden L. Clopton and Yolanda Y. Clopton - Page 8

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          Petitioners contend that capital gains treatment is appropriate             
          because a beneficial interest in the trust was assigned and the             
          future annual lottery payments were payable to the trust and not            
          to Singer.  Petitioners claim that because an interest in a trust           
          not used in a taxpayer’s trade or business is not excluded from             
          capital asset status, the sale of an interest in a trust results            
          in capital gain.                                                            
               This Court and the Court of Appeals for the Ninth Circuit              
          have previously addressed the issue of whether a lump-sum amount            
          received in exchange for the assignment of the right to receive             
          future annual lottery payments is ordinary income or capital                
          gain.  Respondent contends that these cases are controlling for             
          purposes of deciding the present issue.3                                    
               In Davis v. Commissioner, 119 T.C. 1 (2002), the taxpayer              
          won a California State lottery prize and assigned his right to              
          receive annual lottery payments to a trust.  Id. at 2 n.2.  He              
          and his wife took all subsequent actions with respect to the                
          lottery payments and took the position that all income of the               
          trust was includable in their income.  Id.  A portion of each of            
          11 of the future annual lottery payments was subsequently                   
          assigned to Singer in exchange for a lump-sum payment.  Id. at 3.           


               3On brief, respondent also raises the issue of whether the             
          lump-sum payment constitutes ordinary income because of the                 
          grantor trust rules under secs. 671-679.  This issue was not                
          raised in the notice of deficiency, and it is unnecessary for us            
          to address it.                                                              




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