Norman C. and Rosemary J. Eckersley - Page 8




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          Memo. 2002-113 (holding that settlement proceeds were taxable as            
          ordinary income because no sale or exchange of a capital asset              
          occurred, with only one party having the right to receive                   
          property), affd. 78 Fed. Appx. 585 (9th Cir. 2003).                         
               In determining whether a sale or exchange occurred for                 
          petitioners, we focus on whether Pacific Bank received anything             
          in return for the $500,000; i.e., anything other than the                   
          discharge of petitioners’ lawsuit claim concerning the policy.              
          We are unable to conclude that it did.  Petitioners argue that              
          Pacific Bank received more than the extinguishment of the lawsuit           


               2(...continued)                                                        
          (1988), affd. 196 F.3d 866 (7th Cir. 1999), on a somewhat                   
          different rationale; i.e., that the right to recover in the                 
          lawsuit against Xerox, a substitute for lost profits, retained              
          its character as an asset productive of ordinary income after it            
          passed to the S corporations.  By analogy, it seems likely that             
          the Crown life policy, had its ownership been transferred to Ms.            
          Eckersely, would have generated ordinary income to petitioners              
          under sec. 83, at least to the extent of its cash surrender value           
          (which has not been shown to have been less than the $500,000               
          received).  Thus, it would appear that the $500,000 would have              
          the character of ordinary income under the affirming court’s                
          reasoning as well as under that of our own opinion in Nahey (we             
          relied on the absence of a sale or exchange).  We recognize that            
          Judge Cudahy in his concurring opinion in Nahey v. Commissioner,            
          196 F.2d at 870, expressed concern that the court’s opinion might           
          be difficult to reconcile with Pac. Transp. Co. v. Commissioner,            
          483 F.3d 209 (9th Cir. 1973), vacating and remanding T.C. Memo.             
          1970-41, a case that we would be obliged to follow were it                  
          directly on point given that it was decided by the court to which           
          an appeal of this case lies.  We do not believe that Pac. Transp.           
          Co. has any applicability here where, unlike there, there was no            
          “intermediate transaction”.  Apparently, the parties think                  
          likewise as neither party cited Pac. Transp. Co. in the opening             
          posttrial briefs.                                                           






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