Kenneth R. and Delia H. Dunn - Page 11

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               In Arevalo, we discussed eight factors in considering the              
          substance, rather than the labels, of the agreement between the             
          taxpayer and the seller.  Just as we concluded in Arevalo, we               
          conclude here that the factors work against petitioners.                    
          Petitioners did not have control over or possession of the pay              
          phones.  Petitioners did not have the power to select the                   
          location of the pay phones or enter into site agreements with               
          owners or leaseholders of the premises where the pay phones were            
          to be located.  There is no evidence that petitioners paid any              
          property taxes, insurance premiums, or license fees.  There was             
          minimal risk because of the ability of petitioners to sell legal            
          title to the pay phones back to ATC at a fixed formula price.               
          Alpha Telcom was entitled, pursuant to the agreement, to receive            
          most of the profits from the pay phones.  At the time of the                
          bankruptcy of Alpha Telcom, petitioners did not take possession             
          of the pay phones or hire an alternative provider, but rather               
          filed a claim in bankruptcy court for the price of the pay phones           
          and monthly payments not received.  All responsibilities for                
          maintaining the pay phones and risks associated with the pay                
          phones’ producing insufficient revenues remained with Alpha                 
          Telcom.  The transaction was more like a security investment than           
          a sale, whereby petitioners made a one-time payment to ATC in               
          return for an opportunity to receive a minimum annual return per            
          pay phone and the tax benefits of “ownership”.                              






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