DiDonato v. Comm'r

T.C. Memo. 2011-153

UNITED STATES TAX COURT

E. BRUCE AND DENISE A. AGNESS DIDONATO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10801-09. Filed June 29, 2011.

Robert John Alter, for petitioners.

Marco Franco and Sze Wan Florence Char, for respondent.

MEMORANDUM OPINION

LARO, Judge: Pending before the Court are a motion and a

cross-motion for partial summary judgment under Rule 121.1 On

their 2004 Form 1040, U.S. Individual Income Tax Return (2004

1
Unless otherwise indicated, section references are to the
applicable versions of the Internal Revenue Code, and Rule
references are to the Tax Court Rules of Practice and Procedure.
Some dollar amounts are rounded.
 -2-

return), petitioners claimed a $1,870,000 charitable contribution

deduction for contribution of a land conservation easement by

petitioner E. Bruce DiDonato (Mr. DiDonato) to Mercer County, New

Jersey (county). Respondent determined deficiencies in

petitioners’ 2003 and 2004 Federal income taxes of $300,324 and

$309,547, and accuracy-related penalties under section 6662(a) of

$60,065 and $61,909, respectively. The deficiency for 2004

arises, in part, from respondent’s disallowance of the charitable

contribution deduction which petitioners claimed on their 2004

return. In his motion for partial summary judgment (motion),

respondent asserts that petitioners did not substantiate the

reported charitable contribution in the manner required by

section 170(f)(8) and section 1.170A-13(c)(2), Income Tax Regs.

Respondent made his motion on June 1, 2010. On July 7,

2010, petitioners filed an objection to the motion and their

cross-motion for partial summary judgment (cross-motion). On

July 26, 2010, respondent filed his response to the cross-motion.

In connection with the motion and the cross-motion, we decide

whether petitioners are entitled to deduct any portion of the

charitable contribution which they reported on their 2004 return.

We hold that they are not.

Background

On or about July 11, 1995, Mr. DiDonato purchased two

parcels of property located at 245 Cold Soil Road, Princeton, New
 -3-

Jersey, for $211,690 (collectively, Schaafsma parcel).2 The

Schaafsma parcel was subdivided from a single lot, and as of July

11, 1995, could be accessed from Cold Soil Road by way of a dirt

road or a prescriptive easement.3 The Schaafsma parcel could

also be accessed from Cold Soil Road by crossing over land owned

by the county. Adjacent to the Schaafsma parcel was a local park

owned by the county.

On May 10, 1997, the county conveyed to Mr. DiDonato for $1

a 50-foot-wide easement and right of way (full driveway) across

the county’s property by a Deed of Easement and Right of Way

Agreement (deed of easement). The full driveway was adjacent to

the Schaafsma parcel and was situated in the neighboring park;

2
The grantors retained a limited life estate which expired
upon the earlier of: (1) The death of both grantors; (2) the
failure of the grantors to continuously reside in the house for
more than 180 days; (3) destruction of a dwelling house located
on the subject property (residence); or (4) the fifth anniversary
of the closing date. The grantors agreed to pay monthly rent of
$850 to Mr. DiDonato for each month that they resided in the
residence following the fifth anniversary of the closing date.
3
At all relevant times, Mr. DiDonato owned at least one
other parcel near the Schaafsma parcel. Petitioners assert that
they had a prescriptive easement over property they owned that
allowed them access to Cold Soil Road. The record is not clear
whether Mr. DiDonato or his predecessor in interest pursued an
action in New Jersey Superior Court claiming title to real
property or claiming the right to possession in lieu of an
ejectment action. See J & M Land Co. v. First Union Natl. Bank,
766 A.2d 1110, 1125 (N.J. 2001). Of course unity of title to the
dominant and servient tenements in Mr. DiDonato might have
eliminated the prescriptive easement under the doctrine of
merger. See, e.g., Landy v. Cahn, 792 A.2d 544, 554-555 (N.J.
Super. Ct. App. Div. 2002).
 -4-

i.e., it was parkland property. The deed of easement granted Mr.

DiDonato access to the full driveway for pedestrian and vehicular

ingress and egress from the Schaafsma parcel to Cold Soil Road.4

The deed of easement was recorded on October 10, 1997.

At some point after the deed of easement was executed, Mr.

DiDonato filed a lawsuit against the county in the Superior Court

of New Jersey, Chancery Division, Mercer County (State court),

with respect to the deed of easement. The New Jersey Department

of Environmental Protection (NJDEP) intervened and moved the

State court for summary judgment. Mr. DiDonato also moved the

State court for partial summary judgment. The State court

granted NJDEP’s motion for summary judgment and declared the deed

of easement void ab initio. The State court also granted Mr.

DiDonato’s motion for partial summary judgment, finding the

county liable to Mr. DiDonato for breach of “warranties” and

awarding Mr. DiDonato reasonable attorney’s fees. The State

court, with the consent of Mr. DiDonato and the county, appointed

a special master to investigate and recommend to the State court

an appropriate remedy to be awarded to Mr. DiDonato. Mr.

DiDonato and the county also agreed to participate in a series of

mediation sessions which were overseen by the special master. At

4
Petitioners assert that the deed of easement was merely an
expansion of an existing easement, the purpose of which was to
provide Mr. DiDonato with sole and exclusive use of the driveway
and to prevent the public from accessing the driveway.
 -5-

the conclusion of the mediation sessions, Mr. DiDonato and the

county entered into a Memorandum of Settlement (settlement

agreement) on August 27, 2004. That settlement agreement set

forth the terms and conditions to resolve the lawsuit between Mr.

DiDonato and the county.

Under the settlement agreement, the county agreed to convey

a 35-foot-wide portion of the driveway (partial driveway) to Mr.

DiDonato in fee simple. The remaining 15-foot-wide portion of

the driveway was to be held by the county in fee simple to allow

pedestrian and equestrian traffic entry into the neighboring

park. Upon conveyance of the partial driveway interest to Mr.

DiDonato, Mr. DiDonato agreed “to limit his use of the Schaafsma

parcel to a single family residence, thereby giving up any and

all development rights to said property.” The county agreed to

“provide written acknowledgment, in form and substance acceptable

to [Mr.] DiDonato, of a donation to the county of [Mr.]

DiDonato’s development rights in the Schaafsma parcel.” Mr.

DiDonato also agreed to “pay for all property conveyed to him in

fee simple through a donation to the Green Acres Fund”.5 The

amount of the donation was a percentage of the value of the

driveway commensurate with the partial driveway interest conveyed

to Mr. DiDonato. Most if not all of the substantive rights and

5
We understand the Green Acres Fund to be the Garden State
Preservation Trust (GSPT). See N.J. Admin. Code sec. 7:36-
26.6(i) (2011).
 -6-

obligations under the settlement agreement were conditioned upon

receipt of the statutory and regulatory approvals required for

the disposal of parkland under New Jersey State law. Given the

limited record with respect to the actions taken by the county

after execution of the settlement agreement, we briefly review

the rights and obligations required under State law for context.

Pursuant to a statutory grant of authority under the Green

Acres laws,6 the NJDEP commissioner has prescribed rules and

regulations governing the disposal or diversion of parkland

property. See N.J. Admin. Code sec. 7:36-1.2 (2011). Those

regulations provided that the partial driveway, by virtue of its

status as parkland protected under the Green Acres laws, could

not be conveyed to Mr. DiDonato without approval of the

conveyance from the Office of Green Acres in the NJDEP, the NJDEP

commissioner, and the State House Commission (commission). Id.

sec. 7:36-26.3; see id. sec. 7:36-2.1.

The county was required to hold a public hearing on the

application and provide the public with an opportunity to submit

6
The Commissioner of the NJDEP (NJDEP commissioner) is
granted authority to prescribe rules and regulations governing
the administration, operation, and use of lands as set forth in
the New Jersey Green Acres Land Acquisition Act of 1961, N.J.
Stat. Ann. sec. 13:8A-1 (West 1961), the New Jersey Green Acres
Land Acquisition Act of 1971, N.J. Stat. Ann. sec. 13:8A-19 (West
1971), the New Jersey Green Acres Land Acquisition and Recreation
Opportunities Act, N.J. Stat. Ann. sec. 13:8A-35 (West 1975), and
the Garden State Preservation Trust Act, N.J. Stat. Ann. sec.
13:8C-1 (West 1999). We refer to these laws collectively as the
Green Acres laws.
 -7-

written comments to the NJDEP. Id. sec. 7:36-26.6(c), (d), (e).

Following that hearing, the county was required to submit

additional documentation to the NJDEP and wait at least 75 days

before the commission considered the application. Id. sec. 7:36-

26.6(f). After receiving the county’s posthearing submissions,

the commission was authorized to approve or disapprove of the

application for disposition of the partial driveway interest to

Mr. DiDonato. Id. sec. 7:36-26.6(g). Upon approval of the

disposition of the partial driveway interest, the county was

generally required to remit to NJDEP, for deposit in the GSPT,

the amount of monetary compensation proposed by the county and

approved by the Commission. Id. sec. 7:36-26.6(i). Upon actual

or equivalent receipt of such compensation, the NJDEP

Commissioner was to execute a release of the Green Acres laws and

restrictions on the parkland which the Commission approved to be

disposed of or diverted. Id. sec. 7:36-26.3(a)(9).

At some point after December 27, 2004, the county filed an

application with the commission and requested that restrictions

under the Green Acres laws be released for the partial driveway

interest to be conveyed to Mr. DiDonato. Pursuant to an

agreement entered into between the county and the commission, the

county purchased 16.66 acres of land and agreed to dedicate that

land as parkland encumbered by the Green Acres laws. A portion

of the purchase price ($36,000) was funded with proceeds from the
 -8-

sale of the partial driveway interest to Mr. DiDonato. The

balance of the purchase price was paid by the county with “open

space tax funds and Green Acres funds”. As a condition of the

sale of the partial driveway interest, Mr. DiDonato agreed to

convey to the county a reciprocal deed which permanently

restricted the development of the Schaafsma parcel to one single-

family home. On December 12, 2005, the commission approved that

application and the sale of 2.05 acres of land from the county to

Mr. DiDonato.7

On or about December 22, 2006, the county sent to Mr.

DiDonato a letter acknowledging and thanking him for his

“donation” of the development rights to the Schaafsma parcel.

That letter advised Mr. DiDonato that the county did not

independently appraise the donated property and that it was Mr.

DiDonato’s responsibility to determine the value of the donated

property for “income tax deductibility” purposes.

On December 29, 2006, the county conveyed the partial

driveway interest to Mr. DiDonato by deed (deed) from the county

in exchange for (1) $47,031, and (2) a reciprocal deed from Mr.

DiDonato transferring development rights to the Schaafsma parcel.

The deed provided that the partial driveway interest conveyed to

Mr. DiDonato merged into and became part of the Schaafsma parcel.

7
We understand these 2.05 acres to be the same partial
driveway interest which the county agreed to convey to Mr.
DiDonato under the settlement agreement.
 -9-

On March 6, 2007, the NJDEP and the county executed a Green

Acres Release and Compensation Agreement and Deed of Restriction,

whereby the State agreed to release the land restrictions on the

partial driveway interest conveyed to Mr. DiDonato in exchange

for a reciprocal deed from Mr. DiDonato to the county permanently

restricting the development of the subject property to one

single-family home. On March 19, 2007, Mr. DiDonato and the

county executed a Deed of Restriction (deed of restriction),

whereby Mr. DiDonato conveyed to the county a permanent

restriction against the use of the Schaafsma property for more

than one single-family home.

In October 2005 petitioners filed their 2004 return, on

which they claimed a charitable contribution deduction relating

to the easement contribution. Attached to that return was Form

8283, Noncash Charitable Contributions, on which petitioners

reported the appraised fair market value of the land conservation

easement as $1,870,000 and their cost or adjusted basis as

$300,000. The Form 8283 was not signed by an appraiser or an

authorized representative of the county. Petitioners also

attached to their 2004 return a Self Contained Complete Appraisal

Report (appraisal) prepared by Tighue Appraisal Group (Tighue).

The appraisal was dated October 3, 2005, and valued three

parcels of property owned by Mr. DiDonato as of August 27, 2004,
 -10-

the Schaafsma parcel and one additional parcel.8 The purpose of

the appraisal was to estimate a fee simple estate of those three

parcels, and the value of development rights of those parcels.

The appraisal reported that the market value of the three parcels

unrestricted by the easement was $2,070,000. The appraisal also

reported that the market value of the three parcels restricted by

the easement was $200,000. The appraisal concluded that the

value of the easement was the difference of $1,870,000.

During the discovery stage of this proceeding, respondent

requested from petitioners a Form 88239 signed by Tighue and the

county. Mr. DiDonato, through counsel, responded that no such

Form 8283 was received. By notice of deficiency dated February

8
Although respondent does not allege any defect in the
appraisal in the motion, we express concern over the validity and
credibility of that appraisal. First, we observe that the
appraisal includes in the value of the donated property the
development rights on three parcels of property when the deed of
restriction concerned development rights on only the two parcels
making up the Schaafsma parcel. Second, the appraisal uses
market value and not fair market value as a standard of value.
In that regard, the definition of market value in the appraisal
embodies selective elements of fair market value but does not
encompass the definition of fair market value required by sec.
20.2031-1(b), Estate Tax Regs. See Bank One Corp. v.
Commissioner, 120 T.C. 174, 303 (2003), affd. in part and vacated
in part sub nom. J.P. Morgan Chase & Co. v. Commissioner, 458
F.3d 564 (7th Cir. 2006).
9
Respondent’s request for production of documents requested
“Form 8823”, which is a form used by a taxpayer to notify the
Internal Revenue Service of noncompliance with the low-income
housing tax credit provisions or any low-income housing building
disposition. See sec. 42(m)(1)(B)(iii). Given the context of
respondent’s document request, we assume that respondent intended
to request an executed Form 8283 and not Form 8823.
 -11-

20, 2009, respondent determined that petitioners were not

entitled to deduct any part of the $1,870,000 charitable

contribution reported on their 2004 Federal income tax return.

Petitioners petitioned the Court on May 1, 2009.

Discussion

The issue before the Court on the motion and the cross-

motion is whether petitioners substantiated the reported

charitable contribution in the manner required by section

170(f)(8) and section 1.170A-13(c)(2), Income Tax Regs.

Respondent argues that petitioners did not substantiate the

charitable contribution because petitioners (1) failed to obtain

a contemporaneous written acknowledgment of the donated property

as required by section 170(f)(8), and (2) did not attach to their

2004 return a completed appraisal summary (i.e., Form 8283) as

required by section 1.170A-13(c)(2)(i)(B), Income Tax Regs.

Petitioners argue that they substantiated the charitable

contribution because (1) the settlement agreement qualifies as a

contemporaneous written acknowledgment under section 170(f)(8),

and (2) the Form 8283 which they attached to their 2004 Federal

income tax return substantially complied with the requirements of

section 1.170A-13(c)(2)(i)(B), Income Tax Regs. We agree with

respondent.
 -12-

I. Standard of Review

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials of phantom factual issues.

Boyd Gaming Corp. v. Commissioner, 106 T.C. 343, 346-347 (1996);

Kroh v. Commissioner, 98 T.C. 383, 390 (1992). Either party may

move for summary judgment upon all or any part of the legal

issues in controversy. Rule 121(a); FPL Group, Inc. v.

Commissioner, 116 T.C. 73, 74 (2001). We will render a decision

on a motion for partial summary judgment “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, * * * show that there is no genuine

issue as to any material fact and that a decision may be rendered

as a matter of law.” Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994). The parties filed the motion and the cross-motion

for partial summary judgment on whether petitioners have properly

substantiated the $1,870,000 charitable contribution they

reported on the 2004 return. The parties agree, and we conclude,

that there is no genuine issue of material fact and that a

decision may be rendered as a matter of law.

II. Noncash Charitable Contribution

Section 170(a)(1) generally allows a deduction for any

charitable contribution made within the taxable year. Section

170(c)(1) defines a charitable contribution for this purpose to
 -13-

include a contribution or gift to or for the use of a political

subdivision of a State, such as the county. See Woodbury v.

Commissioner, T.C. Memo. 1988-272, affd. 900 F.2d 1457 (10th Cir.

1990). Before a taxpayer may claim entitlement to a charitable

contribution deduction, he or she must satisfy various statutory

and regulatory recordkeeping requirements. The parties dispute

whether Mr. DiDonato substantiated his contribution of land

development rights in the Schaafsma parcel in the manner required

by section 170(f)(8) and section 1.170A-13(c)(2), Income Tax

Regs. We focus on petitioners’ ability to meet the requirements

of section 170(f)(8).

Under section 170(f)(8)(A), a taxpayer is generally allowed

a charitable contribution deduction of $250 or more only if the

contribution is substantiated by a contemporaneous written

acknowledgment by the donee organization. See also sec. 1.170A-

13(f)(1), Income Tax Regs. That acknowledgment must be from a

donee organization and must generally state: (1) The amount of

cash and a description of any noncash property contributed by the

taxpayer; (2) whether the donee organization provided any goods

or services in consideration for the property contributed; and

(3) a description and good faith estimate of the value of any

goods or services contributed by the taxpayer. See sec.

170(f)(8)(A) and (B); sec. 1.170A-13(f)(2), Income Tax Regs.
 -14-

The parties disagree on whether the settlement agreement

qualifies as a contemporaneous written acknowledgment under

section 170(f)(8). We need not address whether the settlement

agreement was contemporaneous within the meaning of the statute

because, as discussed below, the settlement agreement is not an

“acknowledgment” within the purview of section 170(f)(8)(A).

Although section 170(f)(8) sets forth the information which

must be included in a qualifying acknowledgment, neither Congress

nor the Secretary defined the term “acknowledgment” for purposes

of that section. We are also unaware of any reported decision or

legislative history interpreting the term “acknowledgment” in the

context of section 170(f)(8). We therefore use the “‘ordinary,

contemporary, common meaning’” of the term “acknowledgment” when

applying section 170(f)(8). See Pioneer Inv. Servs. Co. v.

Brunswick Associates Ltd. Pship., 507 U.S. 380, 388 (1993)

(quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); Alcoa,

Inc. v. United States, 509 F.3d 173, 181 (3d Cir. 2007); Med.

Transp. Mgmt. Corp. v. Commissioner, 127 T.C. 96, 101 (2006).

Black’s Law Dictionary defines the term “acknowledgment” as

“the act of making it known that one has received something.”

Black’s Law Dictionary 23 (7th ed. 1999); see also Merriam-

Webster’s Collegiate Dictionary 10 (10th ed. 1997). We agree

with this definition in the light of the purpose behind enactment

of section 170(f)(8). As the Court of Appeals for the Ninth
 -15-

Circuit stated in Addis v. Commissioner, 374 F.3d 881, 885 (9th

Cir. 2004), affg. 118 T.C. 528 (2002),

Congress enacted section 170(f)(8) to increase
compliance with the rule that “where a charity receives
a quid pro quo contribution (i.e, a payment made partly
as a contribution and partly in consideration for goods
or services furnished to the payor by the donee
organization),” a charitable contribution deduction is
limited to the amount exceeding the value of the
consideration received. H. Rep. 103-111, at 785
(1993). Section 170(f)(8) “does not impose an
information reporting requirement upon charities;
rather it places the responsibility upon taxpayers ...
to request ... substantiation from the charity of their
contribution (and any good or service received in
exchange).” H. Conf. Rep. 103-213, at 563-64 (1993).

See also Weyts v. Commissioner, T.C. Memo. 2003-68 (discussing

the reasons behind enactment of section 170(f)(8)). From Addis

and the relevant legislative history, it is clear that Congress

required a donee organization to acknowledge in a contemporaneous

written document that it received cash or property for two

principal reasons: First, to inform the donor that all or a

portion of an amount contributed to a donee organization may not

be deductible; and second, to ease the administration and audit

of charitable contributions deductions. See Addis v.

Commissioner, 118 T.C. at 536; H. Rept. 103-111, at 785 (1993),

1993-3 C.B. 167, 361. It is against this backdrop that we

conclude that the settlement agreement is not an acknowledgment

for purposes of section 170(f)(8).

Petitioners argue that the settlement agreement qualifies as

a contemporaneous written acknowledgment because that agreement
 -16-

“legally obligated” Mr. DiDonato to donate his development rights

in the Schaafsma parcel. We disagree. The substantive rights

and obligations created by the settlement agreement on August 27,

2004, were “subject to and conditioned upon” the county’s

obtaining approval for the disposition of parkland from the

commission at some future date. The commission, however, did not

approve the disposition of the partial driveway interest until

December 12, 2005, more than 15 months after the settlement

agreement was executed. When the settlement agreement was

entered into on August 27, 2004, Mr. DiDonato was not under a

contractual duty to convey his development rights to the county

and no legal obligation was certain to occur. The county was

therefore not able to acknowledge receipt of Mr. DiDonato’s

development rights on August 27, 2004, because his obligation to

transfer those rights had not yet matured and were not certain to

do so.

The settlement agreement also provided that if any term

therein was not satisfied, then Mr. DiDonato and the county

agreed to return to the special master for further proceedings.

The outcome of those further proceedings would then replace any

duty on the part of Mr. DiDonato to convey his development rights

to the county. If the commission did not approve the disposition

of the partial driveway interest, then the settlement agreement

would have been superseded by the outcome of those additional
 -17-

proceedings. See, e.g., Enter. Energy Corp. v. United States (In

re Columbia Gas Sys., Inc.), 50 F.3d 233, 241-243 (3d Cir. 1995).

The chronology of events surrounding the county’s

contribution of the partial driveway interest to Mr. DiDonato and

Mr. DiDonato’s reciprocal conveyance of his development rights to

the county also suggests that the county was not assured of

receiving Mr. DiDonato’s development rights by August 27, 2004.

After the settlement agreement was executed, the county applied

to the commission for approval to dispose of the partial driveway

interest in fee simple. Only after the county obtained the

commission’s approval to dispose of the partial driveway interest

on December 12, 2005, did the county send Mr. DiDonato the letter

dated December 22, 2006, which acknowledged and thanked him for

his “donation”. The county’s actions indicate that the county

did not regard Mr. DiDonato’s obligation under the settlement

agreement as mature until the commission approved disposition of

the partial driveway interest. Given that the county did not

regard Mr. DiDonato’s contribution of his development rights as

complete, how then could a county representative have

acknowledged receipt of those rights? The answer, we believe, is

that the county could not have acknowledged receipt of Mr.

DiDonato’s development rights as of August 27, 2004, because the

condition obligating Mr. DiDonato to transfer those rights to the

county (i.e., approval from the commission) had not been
 -18-

satisfied and therefore the obligations of Mr. DiDonato under

that agreement had not matured.

Petitioners do not argue, and we do not find, that the

letter from the county to Mr. DiDonato dated December 22, 2006,

qualifies as a contemporaneous written acknowledgment for 2004.

First, that letter does not satisfy the contemporaneousness

requirement because it was obtained after petitioners filed the

2004 return. See sec. 170(f)(8)(C)(i). Second, that letter does

not contain a statement that the county provided no goods or

services in consideration for Mr. DiDonato’s contribution as

required by section 170(f)(8)(ii). See, e.g., Schrimsher v.

Commissioner, T.C. Memo. 2011-71 (denying a charitable

contribution deduction where an agreement did not include a

description and good faith estimate of the consideration paid by

a donee); Hollingsworth v. Commissioner, T.C. Memo. 2010-262

(disallowing a charitable contribution deduction where two

separate documents offered by the taxpayer failed to state

whether the donee provided any goods or services in consideration

of the charitable contribution); Kendrix v. Commissioner, T.C.

Memo. 2006-9; Castleton v. Commissioner, T.C. Memo. 2005-58,

affd. 188 Fed. Appx. 561 (9th Cir. 2006). Thus, the letter dated
 -19-

December 22, 2006, similarly fails as a contemporaneous written

acknowledgment under section 170(f)(8)(A).10

III. Conclusion

In the light of the foregoing, we hold that the settlement

agreement does not qualify as a contemporaneous written

acknowledgment within the meaning of section 170(f)(8)(A). Given

that petitioners do not have a written acknowledgment from the

county and that they have not established any exception to the

written acknowledgment requirement, see, e.g., sec. 170(f)(8)(D),

we conclude that petitioners are precluded by statute from

deducting the $1,870,000 as a charitable contribution, see Hill

v. Commissioner, T.C. Memo. 2004-156. Accordingly, we will grant

the motion and deny the cross-motion. In so deciding, we have

considered all arguments raised by the parties, and to the extent

not discussed herein we conclude that they are irrelevant, moot,

or without merit.

To reflect the foregoing,

An appropriate order will

be issued granting respondent’s

motion and denying petitioner’s

cross-motion.

10
Petitioners do not assert that the Form 8283 which they
filed with their 2004 return serves as a contemporaneous written
acknowledgment. See Friedman v. Commissioner, T.C. Memo. 2010-
45.