George and Angeline Lattera - Page 6

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          that the right to receive the future annual lottery payments did            
          not constitute a capital asset within the meaning of section                
          1221.   Id. at 7.  We have repeatedly relied upon the analysis in           
          Davis.  Clopton v. Commissioner, T.C. Memo. 2004-95; Simpson v.             
          Commissioner, T.C. Memo. 2003-155; Johns v. Commissioner, T.C.              
          Memo. 2003-140; Boehme v. Commissioner, T.C. Memo. 2003-81.4  No            
          purpose would be served by repeating the analysis in Davis                  
          regarding why the right to receive future annual lottery payments           
          does not constitute a capital asset.                                        
               Petitioners’ remaining arguments all depend upon the                   
          determination that the lottery ticket was the property sold to              
          Singer under the sale agreements.  This argument was considered             
          and rejected in Simpson and Johns.                                          
               Petitioners surrendered the lottery ticket to the                      
          Pennsylvania Lottery and claimed the lottery prize.  The lottery            
          prize was payable in 26 payments.  Petitioners did not sell the             
          lottery ticket to Singer, but rather their right to future                  
          lottery payments.  Pursuant to our holding in Davis v.                      
          Commissioner and its progeny, we conclude that the $3,372,342               




               4  Accord United States v. Maginnis, 356 F.3d 1179, 1187               
          (9th Cir. 2004) (holding that the amount that the taxpayer                  
          received in exchange for the taxpayer’s assignment to a third               
          party of his right to receive certain future annual lottery                 
          payments is ordinary income under the “substitute for ordinary              
          income” doctrine).                                                          





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