Keith and Janet Scherbart - Page 2

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               After resolution of other issues as a result of Bot v.                 
          Commissioner, 353 F.3d 595 (8th Cir. 2003), affg. 118 T.C. 138              
          (2002), the sole issue remaining for decision is whether                    
          petitioners are entitled to defer income.                                   
               Some of the facts in this case have been stipulated and are            
          so found.  Petitioners resided in Balaton, Minnesota, at the time           
          they filed their petition.                                                  
               Section 7491 does not affect the outcome because                       
          petitioners’ liability for the deficiencies is decided on the               
          preponderance of the evidence.                                              
               During taxable years 1994 and 1995, petitioner Keith                   
          Scherbart (petitioner) was a member of Minnesota Corn Processors            
          (MCP).  MCP is an agricultural cooperative organized under the              
          laws of the State of Minnesota and owned by corn producers for              
          the purpose of marketing and processing their corn.                         
              Under the Uniform Marketing Agreement, petitioner designated           
          MCP as petitioner’s agent.  Petitioner was obligated to deliver             
          bushels of corn equal to the number of “Units of Equity                     
          Participation” he held in MCP.  MCP required 3 deliveries of raw            
          corn per year.  Members were permitted to fulfill their delivery            
          obligations through a variety of means, including the use of                
          MCP’s “pool” corn.  “Pool” corn is corn purchased and maintained            
          by MCP, and at the request of a member is used to fulfill a                 
          specified portion of the member’s delivery obligation.  During              






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