Roger L. Watkins - Page 5

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          timely filed a petition with the Court to dispute respondent’s              
          determinations.                                                             
                                     Discussion                                       
               The parties dispute whether petitioner’s receipt of                    
          $2,614,744 in exchange for the assignment of his right to receive           
          future lottery installment payments constitutes ordinary income             
          or capital gain during the year in issue.  Resolution of this               
          issue depends on whether petitioner’s right to receive the                  
          remaining lottery installment payments was a capital asset within           
          the meaning of section 1221.                                                
               Petitioner’s argument that the assignment was a sale of a              
          capital asset relies on reasoning found in United States v.                 
          Maginnis, 356 F.3d 1179 (9th Cir. 2004).  We note from the outset           
          that we are not bound by the opinion of the Court of Appeals for            
          the Ninth Circuit because appeal of this decision would lie in              
          the Court of Appeals for the Tenth Circuit, which has not ruled             
          on this issue.  Sec. 7482(b)(1)(A).                                         
               Additionally, in Maginnis, the Court of Appeals affirmed the           
          District Court holding that under the substitute for ordinary               
          income doctrine the sale of a right to future lottery payments              
          should be taxed as ordinary income.2  Id. at 1187.  Petitioner              




               2  Under the “substitute for ordinary income doctrine”, a              
          court narrowly construes the term “capital asset” when taxpayers            
          make attempts to transform ordinary income into capital gain.               
          See Commissioner v. P.G. Lake, Inc., 356 U.S. 260, 265 (1958).              



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