Eckersley v. Commissioner

Ninth Circuit

Eckersley v. Commissioner

336 F. App'x 633

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 16, 2009

DocketNo. 08-70934

StatusPublished

This text of 336 F. App'x 633 (Eckersley v. Commissioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eckersley v. Commissioner, 336 F. App'x 633 (9th Cir. 2009).

Pincite

Opinion

MEMORANDUM

**

Although the burden of proving that the proceeds of a settlement are capital gains is on the taxpayer, Milenbach v. Comm’r, 318 F.3d 924, 933 (9th Cir.2003), the Eck-ersleys adduced no evidence that they owned the policy or that the premiums paid by Pacific were recognized by the Eckersleys as income. They therefore could not prove that the payment of the settlement was in lieu of the “sale or exchange of a capital asset.” 26 U.S.C. § 1222; Milenbach, 318 F.3d at 932. Because a “precondition to realizing a long-term capital gain is the ownership of a capital asset,” Trantina v. United States, 512 F.3d 567, 573 (9th Cir.2008), the Tax Court correctly found that the settlement payment was ordinary income rather than capital gains.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

**

Although the burden of proving that the proceeds of a settlement are capital gains is on the taxpayer, Milenbach v. Comm’r, 318 F.3d 924, 933 (9th Cir.2003), the Eck-ersleys adduced no evidence that they owned the policy or that the premiums paid by Pacific were recognized by the Eckersleys as income. They therefore could not prove that the payment of the settlement was in lieu of the “sale or exchange of a capital asset.” 26 U.S.C. § 1222; Milenbach, 318 F.3d at 932. Because a “precondition to realizing a long-term capital gain is the ownership of a capital asset,” Trantina v. United States, 512 F.3d 567, 573 (9th Cir.2008), the Tax Court correctly found that the settlement payment was ordinary income rather than capital gains.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

336 F. App'x 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckersley-v-commissioner-ca9-2009.

Opinion

Related

Cite This Page — Counsel Stack