Eleventh Circuit Affirms Ordinary Income Treatment of Forfeited Deposits on Lapsed Sale of Real Estate: Eleventh Circuit Affirms Tax Court Ruling That Gain Attributable to Forfeited Deposits With Respect to Sale of Hotel Is Ordinary Income

Sullivan & Cromwell LLP - February 20, 2018

In CRI-Leslie, LLC, Donald W. Wallace, Tax Matters Partner v. Commissioner of Internal Revenue, 11th Cir., No. 16-17424, February 15, 2018, the Eleventh Circuit affirmed the Tax Court’s earlier decision, holding that the taxpayer was required to recognize ordinary income—not capital gain—in respect of forfeited deposits relating to a lapsed contract for the sale of a hotel. This decision rejects the position previously taken by many taxpayers that gain recognized with respect to forfeited deposits should be treated as capital gain, consistent with the treatment that would have applied had the sale been completed.