                       122 T.C. No. 24



                UNITED STATES TAX COURT



             ISMAT M. ABEID, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10441-02.                Filed June 29, 2004.


     P, a nonresident alien residing in Israel during
1997, 1998, and 1999 (years in issue), became entitled
to 20 annual payments of $722,000 each by virtue of a
1992 purchase of a $1 ticket that won a lottery
sponsored by the State of California. P received a
payment of $722,000 from the California State Lottery
in each of the years in issue. P filed U.S. Federal
income tax returns for those years in which he took the
position that the payments were not subject to U.S.
tax.

     R determined that the payments were subject to
U.S. tax under sec. 871(a)(1)(A), I.R.C., resulting in
a deficiency for each year in issue. P contends that
the payments constitute “annuities” within the meaning
of par. (5) of art. 20 of the Income Tax Convention,
Nov. 20, 1975, U.S.-Isr., Hein’s No. KAV 971, at xxii
(treaty) and are therefore exempt from U.S. tax
pursuant to paragraph (2) of Article 20 of the treaty,
which provides that “annuities” shall be taxable only
in the jurisdiction in which the recipient resides.
                               - 2 -


          Held: The payments at issue are not “annuities”
     as that term is defined in the treaty, because they
     were not paid “under an obligation to make the payments
     in return for adequate and full consideration” as
     provided in the treaty. Accordingly, the payments are
     subject to U.S. tax as determined by R.


     Donald L. Feurzeig, for petitioner.

     Paul R. Zamolo and Rebecca Duewer, for respondent.


                              OPINION


     GALE, Judge:   This case is before us on the parties’ cross-

motions for summary judgment under Rule 121.1   The issue for

decision is whether certain payments received by petitioner from

a lottery operated by the State of California (California State

Lottery) are exempt from U.S. taxation pursuant to the Income Tax

Convention, Nov. 20, 1975, U.S.-Isr., Hein’s No. KAV 971 (U.S.-

Israel Income Tax Treaty or treaty).

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,


     1
       Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code for the taxable years
in issue.
                                - 3 -

together with the affidavits, if any, 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(a) and (b); Sundstrand

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

(7th Cir. 1994).   In the instant case, the parties agree that

there are no genuine issues of material fact and that judgment

may be rendered as a matter of law.

      In support of their respective motions, each party has

submitted a memorandum of points and authorities.     A hearing on

the motions was also held.

      The parties do not dispute that, at the time of filing of

the petition, petitioner was a resident of Israel.2

      During 1992, while residing in California, petitioner, an

Israeli citizen, purchased a California State Lottery ticket for

$1.   That ticket won the “Super Lotto” lottery, entitling

petitioner to receive annual payments of $722,000 from the

California State Lottery for 20 years.   Petitioner did not have a

choice as to the timing or manner of payment of his lottery

winnings.

      During 1997, 1998, and 1999 (years in issue), petitioner

resided in Israel.   For each of the years in issue, petitioner

received payments of $722,000 in California State Lottery



      2
       The parties have stipulated that review of this case shall
be by the U.S. Court of Appeals for the D.C. Circuit.
                               - 4 -

winnings but did not report these amounts as income on his

Federal income tax returns (filed as a nonresident alien).    For

purposes of computing his Israeli income tax liability for the

years in issue, petitioner took the position that the payments

were lottery winnings, exempt from Israeli income tax.

Petitioner did not pay any Israeli income tax on account of the

payments.

     In a notice of deficiency, respondent determined that the

lottery payments were includible in petitioner’s taxable income

pursuant to section 871(a)(1)(A), resulting in a deficiency of

$216,600 for each year in issue.    In his petition, petitioner

alleges that the payments are exempt from U.S. taxation pursuant

to the U.S.-Israel Income Tax Treaty because they constitute

“annuities” within the meaning of paragraphs (2) and (5) of

Article 20 of the treaty.

     In general, “interest * * *, dividends, rents, salaries,

wages, premiums, annuities, compensations, remunerations,

emoluments, and other fixed or determinable annual or periodical

gains, profits, and income” received by a nonresident alien from

sources within the United States and that are not effectively

connected with a U.S. trade or business, are subject to a 30-

percent tax.   Sec. 871(a)(1)(A).   Gambling winnings paid to a

nonresident alien fall within this provision, Barba v. United

States, 2 Cl. Ct. 674 (1983), with limited exceptions, see sec.
                               - 5 -

871(j).   Annual payments of State lottery winnings are treated as

gambling winnings.   Rusnak v. Commissioner, T.C. Memo. 1987-249;

see also sec. 3402(q)(3)(B)(treating certain proceeds from wagers

in State-conducted lotteries as gambling winnings).3

     The provisions of the Internal Revenue Code are applied to a

taxpayer, however, “with due regard to any treaty obligation of

the United States which applies to such taxpayer.”     Sec.

894(a)(1).   The U.S.-Israel Income Tax Treaty, Hein’s No. KAV

971, at xxii, provides:

             Article 20-–Private Pensions and Annuities

                *    *     *     *      *    *    *

          (2) Alimony and annuities paid to an individual
     who is a resident of one of the Contracting States
     shall be taxable only in that Contracting State.

                *    *    *     *      *    *     *

          (5) The term “annuities”, as used in this Article,
     means a stated sum paid periodically at stated times
     during life, or during a specified number of years,
     under an obligation to make the payments in return for
     adequate and full consideration (other than services
     rendered).


     Petitioner’s position is that the payments he received



     3
       We note that whether annual payments of State lottery
winnings are categorized under sec. 871(a)(1) as “annuities” (as
the term is used in that section) or as “fixed or determinable
annual or periodical gains, profits, and income” is immaterial in
the instant case, as the tax imposed by sec. 871(a)(1) applies to
either category. As discussed hereinafter, the result in this
case turns upon the meaning of “annuities” as used in the U.S.-
Israel Income Tax Treaty.
                               - 6 -

during the years at issue from the California State Lottery were

an “annuity” within the meaning of the treaty and therefore

exempt from taxation by the United States under Article 20(2)

thereof.   While respondent does not dispute that petitioner was a

resident of Israel, entitled as such to the benefits of the

treaty, respondent nonetheless contends that the treaty provides

no exemption for the payments at issue because they are not an

“annuity” as defined in the treaty.    Consequently, the payments

are taxable under section 871(a)(1)(A) as U.S.-sourced income of

a nonresident alien.4

     To support his position that the payments constitute an

annuity, petitioner relies on our decision in Estate of

Gribauskas v. Commissioner, 116 T.C. 142 (2001), revd. and

remanded 342 F.3d 85 (2d Cir. 2003),5 in which we held that

annual payments of a State lottery prize were an annuity for



     4
       Petitioner has not claimed he was in the business of
gambling or that the lottery winnings were effectively connected
with a U.S. trade or business within the meaning of sec.
871(a)(1)(A).
     5
       Although the Court of Appeals for the Second Circuit
reversed our decision in Estate of Gribauskas insofar as it held
that the lottery prize must be valued pursuant to the valuation
tables prescribed in sec. 7520, the Court of Appeals left
undisturbed our holding that the annual payments of the lottery
prize constituted an annuity for purposes of sec. 7520. Estate
of Gribauskas v. Commissioner, 342 F.3d 85 (2d Cir. 2003), revg.
and remanding 116 T.C. 142 (2001); see also Estate of Shackleford
v. United States, 262 F.3d 1028 (9th Cir. 2001)(annual payments
of a lottery prize constitute an annuity, valuation of which is
made outside tables prescribed by sec. 7520).
                                - 7 -

purposes of section 7520.6   See also Estate of Cook v.

Commissioner, T.C. Memo. 2001-170, affd. 349 F.3d 850 (5th Cir.

2003).    However, we do not believe our holding in Estate of

Gribauskas helps petitioner here.   Article 2(2) of the U.S.-

Israel Income Tax Treaty, Hein’s No. KAV 971, at viii, provides

that “Any * * * term used in this Convention and not defined in

this Convention shall, unless the context otherwise requires,

have the meaning which it has under the laws of the Contracting

State whose tax is being determined.”   (Emphasis added.)   As

noted, “annuities” as used in the treaty is defined in the

treaty.   The treaty definition, as pertinent here, provides that

“annuities” means a stated sum paid periodically at stated times

“under an obligation to make the payments in return for adequate

and full consideration (other than services rendered).”

     In Estate of Gribauskas, in holding that annual payments of

a lottery prize were an “annuity” for purposes of section 7520,

we decided that it was the characteristics of the payment stream

as fixed and periodic that generally determined whether the


     6
       Petitioner notes that in Estate of Gribauskas, we
described our holding as a conclusion that annual payments of
lottery winnings “constitute an annuity for tax purposes and
within the meaning of section 7520". Estate of Gribauskas v.
Commissioner, 116 T.C. 142, 159 (2001)(emphasis added). As
discussed hereinafter, our conclusion in this case is based upon
a construction of the term “annuities” as defined in the U.S.-
Israel Income Tax Treaty. Accordingly, we express no opinion
regarding the extent to which our holding in Estate of Gribauskas
may impact the meaning of “annuity” as used elsewhere in the
Internal Revenue Code.
                                - 8 -

arrangement was an annuity.   One of the arguments advanced by the

taxpayer was that the annual payments of the lottery prize could

not constitute an annuity because the consideration provided was

only the $1 paid for the lottery ticket, rather than a

substantial premium.    Estate of Gribauskas v. Commissioner, 116

T.C. at 152.    In rejecting that argument, we reasoned that while

a substantial premium might be characteristic of a commercial

annuity, it need not be present in a private annuity, an

arrangement that we concluded also fell within the scope of the

term “annuity” as used in section 7520.    Id. at 154-155.   Thus,

the nature of the consideration provided was not determinative of

whether an arrangement constituted an annuity for purposes of

section 7520.

     By contrast, the definition of “annuities” provided in the

U.S.-Israel Income Tax Treaty requires that the obligation to

make the payments have arisen “in return for adequate and full

consideration”.   Consequently, the fact that the payments at

issue in this case may qualify as an annuity for purposes of

section 7520 under the holding in Estate of Gribauskas does not

determine whether they constitute an annuity under the U.S.-

Israel Income Tax Treaty.   The latter depends upon whether the

payments were made “in return for adequate and full

consideration” within the meaning of Article 20(5) of the treaty.

     The term “adequate and full consideration” is not defined in
                                - 9 -

the treaty.    Thus, pursuant to Article 2(2) of the treaty, the

term “shall, unless the context otherwise requires, have the

meaning which it has under the laws of the Contracting State

whose tax is being determined”; here, the United States.

     The term “adequate and full consideration” appears

extensively in the Internal Revenue Code, generally followed by

the phrase “in money or money’s worth”,7 in a multitude of

contexts.8    The term is generally used to connote a purchase or

exchange of property that is bona fide and at an arm’s-length

price, as distinguished from a gift or other transfer of property

between persons who do not transact at arm’s length.    A

definition of “adequate and full consideration” appearing in the

regulations under section 6323, concerning the validity and

priority of tax liens, provides that “adequate and full

consideration” means consideration that has a “reasonable

relationship to the true value of the interest in property


     7
       The meaning of the phrase “in money or money’s worth”,
when it follows “adequate and full consideration”, has been
interpreted to confine the scope of “consideration” to money or
its equivalent; i.e., to exclude a mere promise or agreement as
consideration. See, e.g., Commissioner v. Wemyss, 324 U.S. 303
(1945). Since the only consideration that petitioner claims is
“adequate and full consideration” in this case is money, we do
not believe the absence of the “in money or money’s worth”
qualifier in the treaty language has any material effect on the
analysis herein.
     8
       See, e.g., secs. 274(e)(8), 675(1), 2035(d), 2036(a),
2037(a), 2038(a), 2040(a), 2043(a), 2043(b), 2053(c)(1)(A),
2055(e)(2), 2056(b)(1)(A), 2106(a)(1), 2512(b), 2522(c)(2),
2523(b)(1), 6019(3)(A)(ii), 6323(h)(6).
                              - 10 -

acquired.”   Sec. 301.6323(h)-1(f)(3), Proced. & Admin. Regs.; see

also Estate of Frothingham v. Commissioner, 60 T.C. 211, 215

(1973)(for estate tax purposes, “adequate and full consideration

in money or money’s worth” generally means consideration of

“equivalent amount” to the property transferred for it).

     Petitioner contends that the consideration element of the

treaty definition has been met here by virtue of the fact that

the California State Lottery received “adequate and full

consideration” for the payments made to petitioner from all

purchasers of tickets for the lottery he won.   According to

petitioner, the terms of the treaty do not require that the

recipient of the lottery payments be the source of the

consideration; rather, it is sufficient if the payor (California

State Lottery) received adequate and full consideration from any

source-–in this case, the other purchasers of lottery tickets.

     We do not believe petitioner’s theory comports with the

language of the treaty.   The California State Lottery’s

“obligation” to make the payments at issue was not “in return

for” any consideration provided by the nonwinning purchasers of

lottery tickets.   The consideration provided by these purchasers

was in return for, and fully expended for, a chance to win the

lottery; i.e., a wager.   Cf. Goldman v. Commissioner, 46 T.C.

136, 139 (1966)(purchase price of a lottery ticket is

consideration expended for chance to win, not a contribution to
                              - 11 -

the sponsoring charity), affd. 388 F.2d 476 (6th Cir. 1967).      The

other purchasers of tickets in the lottery won by petitioner did

not provide consideration “in return for” the California State

Lottery’s obligation to make the subject payments to petitioner.

     Petitioner argues in the alternative that, if the treaty is

construed to require that “adequate and full consideration” come

from the recipient of the lottery payments, then he provided such

consideration because he paid the full, undiscounted price for

the winning lottery ticket; namely, $1.    We disagree.

Petitioner’s contention mischaracterizes the transaction which

gave rise to his right to the lottery payments.    The $1 paid by

petitioner was not “adequate and full consideration” for the

right to 20 annual payments of $722,000.    One dollar bears no

“reasonable relationship” to the value of such a right, nor was

the right transferred to him “in return for” the $1 of

consideration he provided.   The $1 paid by petitioner was the

consideration for the ticket itself; i.e., for the wager.    This

$1 consideration was fully expended for, and secured only, a

chance to win the right to the payments at issue herein.9   Cf.


     9
       The conclusion that the $1 consideration was expended for
the wager itself is consistent with the definition of “wager” for
purposes of sec. 3402(q), governing withholding from certain
gambling winnings, including those from State-conducted
lotteries, that are “proceeds from a wager”. The regulations
under that section provide that, in order for a transaction, in
which a chance to win a prize is acquired, to be treated as a
wager, consideration must have been provided to obtain such
                                                   (continued...)
                              - 12 -

Goldman v. Commissioner, supra.   Petitioner became entitled to

the stream of payments not by reason of any exchange of

consideration, but by virtue of winning a wager, a separate

taxable event under U.S. tax law constituting an accession to

wealth.   See, e.g., McClanahan v. United States, 292 F.2d 630,

631-632 (5th Cir. 1961); Solomon v. Commissioner, 25 T.C. 936,

938-939 (1956); Lutz v. Commissioner, T.C. Memo. 2002-89;

Lyszkowski v. Commissioner, T.C. Memo. 1995-235, affd. without

published opinion 79 F.3d 1138 (3d Cir. 1996).   Thus, the

payments petitioner received from the California State Lottery

were neither “in return for” the $1 consideration he cites, nor

was this consideration “adequate and full” with respect to those

payments.   The payments were the proceeds of a winning wager;

i.e., gambling winnings.

     Petitioner also relies upon Estate of Shackleford v. United

States, 82 AFTR 2d 98-5538, 98-2 USTC par. 60,320 (E.D. Cal.

1998), affd. 262 F.3d 1028 (9th Cir. 2001), to support his claim

that the $1 purchase price of the lottery ticket was adequate and

full consideration for the lottery payments.   In that case, a

decedent lottery winner’s estate argued that the decedent’s right

to California lottery payments, if deemed an annuity, should not

be included in the gross estate by virtue of section 2039(b).


     9
      (...continued)
chance. See sec. 31.3402(q)-1(d), Example (10), Employment Tax
Regs.
                              - 13 -

Section 2039(b) limits the inclusion in the gross estate of the

value of certain annuities to “only such part of the value of the

annuity * * * as is proportionate to that part of the purchase

price therefor contributed by the decedent.”   Accordingly, the

estate argued, since the decedent had provided only $1 towards

the purchase price of the annuity represented by the lottery

payments, which was an infinitesimal percentage of the purchase

price contributed by the other purchasers of tickets in the same

lottery, the portion of the annuity includible in the gross

estate should be zero.   The District Court rejected this

argument, concluding that no portion of the annuity qualified for

exclusion under section 2039(b) because the interest in the

lottery payments “represents the accumulated wealth of the

decedent.”   Estate of Shackleford v. United States, 82 AFTR 2d at

98-5542, 98-2 USTC par. 60320 at 86,530.   Consequently, the

entire annuity was includible in the gross estate.

     Petitioner here reasons that, since the District Court in

Estate of Shackleford rejected the argument that a $1 lottery

ticket constituted only “part of the purchase price” (within the

meaning of section 2039(b)) of the annuity resulting from the

lottery win, and instead required that the entire annuity be

included in the gross estate, it follows that the decedent’s $1

payment for the lottery ticket constituted the entire purchase

price for the annuity.   Thus, petitioner reasons, if the $1 price
                              - 14 -

of the lottery ticket was the entire purchase price of the

resulting annuity for purposes of section 2039(b), it must by

extension also constitute “adequate and full consideration” for

the annuity.

     Petitioner’s reliance on Estate of Shackleford is misplaced.

The District Court therein did not conclude that the entire

annuity was includible in the gross estate because the annuity

was acquired solely through decedent’s purchase of a $1 lottery

ticket.   Instead, the court reasoned that full inclusion was

required because the taxpayer had not shown that any part of the

lottery payments was “‘attributable to contributions by the

surviving beneficiary or contributions from another as a gift.’”

Estate of Shackleford v. United States, 82 AFTR 2d at 98-5542,

98-2 USTC at 86,530 (quoting Neely v. United States, 222 Ct. Cl.

250, 613 F.2d 802 (1980)).   The District Court’s conclusion that

the annuity “represents the accumulated wealth of the decedent”,

id., comports with our view that the obligation to pay out

lottery winnings arises from the lottery participant’s winning a

wager, not from his providing adequate and full consideration.

     We therefore hold that the payments petitioner received from

the California State Lottery were not an annuity within the

meaning of the U.S.-Israel Income Tax Treaty because the payments

did not arise from the exchange of adequate and full

consideration; rather, they were the result of winning a wager.
                              - 15 -

Thus, the sums were not paid “under an obligation to make the

payments in return for adequate and full consideration” (emphasis

added) within the meaning of Article 20(5) of the treaty.

     As the treaty is silent with respect to gambling winnings,

and petitioner has failed to establish that the payments at issue

were an “annuity” within the treaty’s meaning, the treaty does

not prevent the United States from imposing a tax under section

871(a)(1)(A) upon such payments.   Accordingly, respondent is

entitled to judgment as a matter of law.    We shall therefore

grant respondent’s cross-motion for summary judgment and deny

petitioner’s motion.   To reflect the foregoing,



                                           An appropriate order and

                                    decision will be entered.
