Alden L. Clopton and Yolanda Y. Clopton - Page 11

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          the sale of his right did not reflect an increase of value above            
          the cost of any underlying capital asset).  Id. at 1184.                    
               The Court of Appeals also rejected the taxpayer’s argument             
          that the substitute for ordinary income doctrine was limited to             
          specific fact situations, none of which were present in the case.           
          The court noted that treating the sale of a lottery right as a              
          capital gain would reward lottery winners who elect to receive              
          periodic payments in lieu of a direct lump-sum payment from the             
          State and then sell that right to a third party.  Id. at 1184.              
          The court stated:                                                           
               Nothing in the Revenue Code compels the creation of                    
               such a dichotomous system for the taxation of lottery                  
               winnings.  The purpose of narrowly construing the term                 
               capital asset under the substitute for ordinary income                 
               doctrine is to “protect the revenue against artful                     
               devices” that undermine the Revenue Code’s standard                    
               treatment of ordinary income and capital gains. * * *                  
               That is precisely what Maginnis has attempted here.                    
               [Id. at 1184-1185.]                                                    
          Finally, the Court of Appeals rejected the taxpayer’s argument              
          that capital gains treatment was appropriate because his lottery            
          right is a debt instrument under section 1275.  Id. at 1187.                
               Petitioners, relying on McAllister v. Commissioner, 157 F.2d           
          235 (2d Cir. 1946), revg. 5 T.C. 714 (1945), and Bell’s Estate v.           
          Commissioner, 137 F.2d 454 (8th Cir. 1943), revg. 46 B.T.A. 484             
          (1942), contend that property not within the statutory exclusions           
          for capital assets produces capital gain on its sale. We have               
          previously recognized that the cases cited by petitioners were              






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