297

1 All section references are to the Internal Revenue Code (Code) in effect 

for the year at issue. All Rule references are to the Tax Court Rules of 

Practice and Procedure. 

MARVIN E. DEBOUGH, PETITIONER v. COMMISSIONER OF

INTERNAL REVENUE, RESPONDENT

Docket No. 22894–12. Filed May 19, 2014. 

P sold his primary residence in 2006 pursuant to an installment sale agreement. The buyers’ indebtedness was secured 

by the residence. Pursuant to I.R.C. sec. 121, P excluded 

$500,000 in gain on the sale. In 2009 the buyers defaulted on 

the deed and P reacquired the property. In a notice of deficiency to P, R determined that P was required to recognize 

long-term capital gain on the reacquisition of the property, 

including the $500,000 that P had previously excluded from 

gain. Held: P is required to recognize long-term capital gain 

on the reacquisition of the property, pursuant to I.R.C. sec. 

1038, including gain previously excluded under I.R.C. sec. 

121. 

Matthew L. Fling, for petitioner. 

John Schmittdiel and Randall L. Eager, for respondent. 

OPINION 

NEGA, Judge: Respondent determined a deficiency in petitioner’s Federal income tax under section 1038(b) 1 of $58,893 

for taxable year 2009. The sole issue in this case is whether 

petitioner underreported his long-term capital gains as a 

result of his failure to recognize gain pursuant to section 

298 142 UNITED STATES TAX COURT REPORTS (297) 

2Petitioner’s purchase cost is listed in various filings with the Court as 

either $24,000 or $25,000. The parties’ joint stipulation of facts uses 

$25,000 as his cost basis, and we use this number in our calculation of petitioner’s adjusted basis. 3We are unsure how petitioner and respondent arrived at this number. 

1038 on the reacquisition of property where gain had been 

previously excluded under section 121. 

Background 

All of the facts in this case, which the parties submitted 

under Rule 122, have been stipulated by the parties and are 

so found except as stated below. Petitioner resided in Delano, 

Minnesota, at the time he filed his petition. 

Petitioner purchased his personal residence and the surrounding 80 acres of mixed-use land (property) in 1966 for 

$25,000. 2 On July 11, 2006, petitioner agreed to sell the 

property to the Stonehawk Corp. and Catherine Constantine 

Properties, Inc. (buyers), on a contract for deed of $1,400,000. 

The contract included the following terms: 

(a) Purchaser shall pay to Seller, at his direction, the sum of One Million 

Four Hundred Thousand and no/100 (1,400,000.00), as and for the purchase price (Purchase Price) for the Property, payable as follows: 

$250,000.00 in hand paid receipt of which is hereby acknowledged. 

Interest shall accrue on July 11, 2006. 

The balance of $1,150,000.00 shall be paid as follows: 

The sum of $250,000.00 is due on July 12, 2007 plus interest at the rate 

of five (5%) percent per annum. 

The balance of $900,000.00 shall be paid as follows: 

The sum of $25,000.00 which includes interest at the rate of five (5%) 

percent per annum shall be made on the 11th day of January 2008 and 

the 11th day of July 2008 and a like sum on the same two days of each 

year thereafter until July 11, 2014, when the entire balance shall 

become due and payable. 

Petitioner originally reported an adjusted basis in the 

property of $742,204. Petitioner calculated his basis in the 

property by adding (i) half of $25,000—the original cost of 

the home, (ii) half of $50,000—capital improvements before 

sale, (iii) $700,000—stepped-up basis from his deceased 

spouse, and (iv) $4,704—commissions and other expenses of 

sale. In the parties’ joint stipulation of facts, respondent and 

petitioner stipulated a basis of $779,704. 3 Using his origiVerDate Mar 15 2010 13:12 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00002 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\DEBOUGH JAMIE
(297) DEBOUGH v. COMMISSIONER 299

However, stipulations are generally treated as conclusive admissions. Rule 

91(e). We therefore accept the parties’ stipulated basis. 

nally calculated basis of $742,204, petitioner reported gain on 

the sale of the property of $657,796, the difference between 

the gross sale price of $1,400,000 and the adjusted basis of 

$742,204. 

After his wife’s death petitioner received a $250,000 payment related to the sale of the property during the 2006 taxable year. Petitioner and his deceased spouse reported this 

income on Form 6252, Installment Sale Income, attached to 

their Form 1040, U.S. Individual Income Tax Return, for the 

2006 taxable year. Petitioner and his deceased spouse calculated their reportable gain for tax year 2006 by (i) 

excluding $500,000 of gain pursuant to section 121, (ii) calculating their gross profit percentage by dividing the $157,796 

in remaining gain ($657,796 – $500,000 = $157,796) by the 

$1,400,000 sale price exclusive of commissions and other 

costs of sale, and (iii) multiplying the gross profit percentage 

by the amount of money received in 2006. Petitioner reported 

installment sale gain for 2006 of $28,178 on the basis of 

these calculations. 

Petitioner received another $250,000 payment related to 

the property during 2007, which he reported on his 2007 

Form 1040. Using the same gross profit percentage as he 

used for 2006, petitioner reported $28,178 in taxable gain on 

his 2007 return. Petitioner received a $5,000 payment related 

to the property during 2008, which he reported on his 2008 

Form 1040. Again using the same gross profit percentage as 

he had used for 2006 and 2007, petitioner reported gain of 

$564 for 2008. In total, petitioner reported $56,920 in gain 

over the course of tax years 2006, 2007, and 2008. 

Subsequently, the buyers failed to comply with the terms 

of the contract for deed. On May 29, 2009, petitioner’s agent 

served the buyers with a notice of cancellation of contract for 

deed. The buyers failed to cure the default or to respond to 

the notice of cancellation of contract for deed. As a result, 

petitioner reacquired the property on or about July 29, 2009. 

Petitioner incurred $3,723 in costs related to repossession of 

the property. 

Petitioner treated his reacquisition of the property in 2009 

as a reacquisition of property in full satisfaction of indebtedVerDate Mar 15 2010 13:12 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00003 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\DEBOUGH JAMIE
300 142 UNITED STATES TAX COURT REPORTS (297) 

ness under section 1038. Petitioner recognized $97,153 in the 

form of long-term capital gains related to the reacquisition of 

the property on his 2009 Form 1040. Petitioner subsequently 

filed an amended Form 1040A, U.S. Individual Income Tax 

Return, for 2009 that removed the $97,153 in long-term capital gains. However, the parties have stipulated and agreed 

that petitioner was, at a minimum, obligated to report 

$97,153 in long-term capital gains related to the sale and 

reacquisition of the property for the 2009 taxable year. 

Respondent mailed petitioner a notice of deficiency (notice) 

dated June 18, 2012, prepared by the St. Paul Office of the 

Internal Revenue Service (IRS) with respect to tax year 2009. 

In the notice respondent determined that petitioner was 

required to recognize $443,644 in long-term capital gains 

related to the sale and reacquisition of the property. 

Respondent later recalculated this amount to be $448,080 

because of the omission of the $5,000 payment petitioner 

received in taxable year 2008 and respondent’s failure to 

account for the tax attributable to this payment that petitioner had previously reported under the installment sale 

method. Respondent calculated the $448,080 in long-term 

capital gains by subtracting the $56,920 petitioner had 

reported for tax years 2006, 2007, and 2008 from the total 

$505,000 in cash petitioner had received over those same 

years. Petitioner timely filed a petition with the Court 

seeking redetermination of the deficiency set forth in the 

notice. 

Discussion 

I. Burden of Proof 

Generally, the Commissioner’s determinations are presumed correct, and the taxpayer bears the burden of proving 

otherwise. Rule 142(a); see Welch v. Helvering, 290 U.S. 111, 

115 (1933). The Commissioner typically bears the burden of 

proof with respect to any increase in deficiency. Rule 142(a). 

However, because our conclusions are based on the preponderance of evidence, we need not decide whether petitioner 

or respondent bears the burden of proof. See Knudsen v. 

Commissioner, 131 T.C. 185, 189 (2008). 

(297) DEBOUGH v. COMMISSIONER 301

II. Interplay of Sections 121 and 1038 

The sole issue for decision in this case involves the interplay between sections 121 and 1038. Section 121 allows 

electing taxpayers to exclude gain resulting from the sale or 

exchange of property if the property has been owned and 

used as their principal residence for periods aggregating two 

or more years over the five-year period before sale. Section 

121(b) applies certain limitations on the amount of gain that 

can be excluded. Unmarried taxpayers may exclude up to 

$250,000 in gain from the sale of a qualifying residence. Sec. 

121(b)(1). Married taxpayers meeting certain requirements 

and filing a joint return can exclude up to $500,000 in gain 

from the sale of a qualifying principal residence. Sec. 

121(b)(2)(A). Taxpayers may exclude gain from the sale of a 

principal residence under section 121 only once every two 

years. Sec. 121(b)(3). 

Congress added section 1038 to the Code by the Act of September 2, 1964, Pub. L. No. 88–570, sec. 2, 78 Stat. at 854. 

Before the enactment of section 1038, reacquisition of real 

property was treated as a taxable exchange under section 

453. S. Rept. No. 88–1361, at 5 (1964), 1964–2 C.B. 828, 831. 

If, as in this case, the initial sale of the property was 

reported as an installment sale, gain or loss on reacquisition 

of the property was treated as the difference between the fair 

market value of the property at the time of reacquisition, 

including improvements thereon, and the basis of the purchaser’s obligations which were discharged by the repossession of the property. Sec. 1.453–5(b)(2), Income Tax Regs. 

Congress added section 1038 to remedy situations where taxpayers were forced to recognize gain upon repossession of 

property by reference to the fair market value at the time of 

repossession. S. Rept. No. 88–1361, supra at 1–3, 1964–2 

C.B. at 828–829. Congress believed measuring gain in this 

manner was inappropriate ‘‘because (1) the taxpayer was 

actually in no better position than he was before he made the 

sale; (2) valuation at the time of repossession was difficult; 

(3) to tax the initial seller on gain at the time of repossession 

was to tax him on gain not yet realized; and (4) because the 

taxpayer had not received a monetary return with respect to 

the property, funds to pay the taxes may be unavailable.’’ 

302 142 UNITED STATES TAX COURT REPORTS (297) 

Conners v. Commissioner, 88 T.C. 541, 544–545 (1987) (citing 

S. Rept. 1361, supra, 1964–2 C.B. at 828). 

Section 1038 provides rules for computing gain when a 

seller repossesses real property in satisfaction of a debt 

secured by that real property. Generally, section 1038 

restores the seller to his position before the sale of the property by ignoring gain or loss upon repossession. However, if 

the seller has received ‘‘money and * * * other property’’ as 

payments before the repossession, section 1038 taxes the 

seller on gain attributable to these payments ‘‘to the extent 

that these amounts have not previously been reported as 

income.’’ Sec. 1038(b)(1); S. Rept. No. 88–1361, supra at 6, 

1964–2 C.B. at 832; see also Greene v. Commissioner, 76 T.C. 

1018, 1025 (1981) (‘‘Congress intended that the gain which a 

taxpayer would be responsible for reporting upon repossession should not exceed the payments he actually had received 

prior to that time.’’). Specifically, section 1038(a) and (b) provides: 

SEC. 1038. CERTAIN REACQUISITIONS OF REAL PROPERTY. 

(a) GENERAL RULE.—If— 

(1) a sale of real property gives rise to indebtedness to the seller 

which is secured by the real property sold, and 

(2) the seller of such property reacquires such property in partial or 

full satisfaction of such indebtedness, 

then, except as provided in subsections (b) and (d), no gain or loss shall 

result to the seller from such reacquisition, and no debt shall become 

worthless or partially worthless as a result of such reacquisition. 

(b) AMOUNT OF GAIN RESULTING.— 

(1) IN GENERAL.—In the case of a reacquisition of real property to 

which subsection (a) applies, gain shall result from such reacquisition 

to the extent that— 

(A) the amount of money and the fair market value of other property (other than obligations of the purchaser) received, prior to such 

reacquisition, with respect to the sale of such property, exceeds 

(B) the amount of the gain on the sale of such property returned 

as income for periods prior to such reacquisition. 

(2) LIMITATION.—The amount of gain determined under paragraph 

(1) resulting from a reacquisition during any taxable year beginning 

after the date of the enactment of this section shall not exceed the 

amount by which the price at which the real property was sold 

exceeded its adjusted basis, reduced by the sum of— 

(A) the amount of the gain on the sale of such property returned 

as income for periods prior to the reacquisition of such property, and 

(297) DEBOUGH v. COMMISSIONER 303

(B) the amount of money and the fair market value of other property (other than obligations of the purchaser received with respect 

to the sale of such property) paid or transferred by the seller in 

connection with the reacquisition of such property. 

For purposes of this paragraph, the price at which real property is sold 

is the gross sales price reduced by the selling commissions, legal fees, 

and other expenses incident to the sale of such property which are 

properly taken into account in determining gain or loss on such sale. 

(3) GAIN RECOGNIZED.—Except as provided in this section, the gain 

determined under this subsection resulting from a reacquisition to 

which subsection (a) applies shall be recognized, notwithstanding any 

other provision of this subtitle. 

A seller who reacquires section 1038 property adjusts his 

basis in the property in accordance with section 1038(c), 

which provides: 

SEC. 1038(c). BASIS OF REACQUIRED REAL PROPERTY.—If subsection 

(a) applies to the reacquisition of any real property, the basis of such 

property upon such reacquisition shall be the adjusted basis of the 

indebtedness to the seller secured by such property (determined as of the 

date of reacquisition), increased by the sum of— 

(1) the amount of the gain determined under subsection (b) resulting 

from such reacquisition, and 

(2) the amount described in subsection (b)(2)(B). 

If any indebtedness to the seller secured by such property is not discharged upon the reacquisition of such property, the basis of such 

indebtedness shall be zero. 

Congress contemplated the potential interaction between 

section 1038 and section 121 by including section 1038(e), 

which provides: 

SEC. 1038(e). PRINCIPAL RESIDENCES.—If— 

(1) subsection (a) applies to a reacquisition of real property with 

respect to the sale of which gain was not recognized under section 121 

(relating to gain on sale of principal residence); and 

(2) within 1 year after the date of the reacquisition of such property 

by the seller, such property is resold by him, 

then, under regulations prescribed by the Secretary, subsections (b), (c), 

and (d) of this section shall not apply to the reacquisition of such property and, for purposes of applying section 121, the resale of such property shall be treated as a part of the transaction constituting the original 

sale of such property. 

Section 1038(e) provides taxpayers with a ‘‘special rule’’ that 

‘‘in effect ignores the repossession * * * where the residence 

is again sold in a reasonable time.’’ S. Rept. No. 88–1361, 

supra at 7, 1964–2 C.B. at 832. 

304 142 UNITED STATES TAX COURT REPORTS (297) 

Petitioner and respondent agree that section 1038(e) does 

not govern the instant case since petitioner did not resell the 

property within one year of repossession. However, they disagree about the import of section 1038(e). Respondent argues 

that section 1038(e) confirms that Congress was aware of the 

interplay between sections 1038 and 121 and drafted section 

1038(e) as a limited response thereto; the absence of a ‘‘more 

generous provision’’ regarding the overlap of sections 1038 

and 121 confirms that Congress intended for taxpayers in 

petitioner’s situation to be treated under the general rules of 

section 1038. Petitioner argues that if Congress had intended 

to completely nullify the section 121 exclusion upon 

reacquisition of a taxpayer’s principal residence, it would 

have drafted a provision explicitly so stating. 

Respondent further argues that because petitioner does not 

meet the requirements for special treatment under section 

1038(e), he is governed by the general rule under section 

1038(b) requiring him to recognize gain upon repossession of 

the property to the extent of money and other property 

received before repossession. For the reasons enumerated 

below, we agree with respondent. 

A. Section 1038 Applies to Sale and Reacquisition of the 

Property. 

The general rule of section 1038(a) is that if a sale of real 

property gives rise to indebtedness to the seller which is 

secured by the sold property and the seller reacquires such 

property in partial or full satisfaction of such indebtedness 

the seller does not recognize gain or loss upon the reacquisition. Conners v. Commissioner, 88 T.C. at 543. Section 

1038(b) requires the seller to recognize gain if he has 

received ‘‘money’’ or ‘‘other property’’ to the extent these 

amounts exceed the amount of gain on the sale returned as 

income before reacquisition. 

By its terms, petitioner’s sale of his principal residence and 

subsequent reacquisition in satisfaction of indebtedness 

secured by the property falls within the ambit of section 

1038. Petitioner sold the property to the buyers in exchange 

for the contract for deed, which evidenced the buyers’ indebtedness and petitioner’s security interest in the property. 

After the buyers defaulted on the contract for deed, petitioner reacquired his former residence in full satisfaction of 

(297) DEBOUGH v. COMMISSIONER 305

the indebtedness secured by the property. Stated simply, section 1038 applies squarely to the facts at issue. The only 

remaining inquiry, then, is whether petitioner must recognize gain previously excluded by reason of the section 121 

exclusion. 

B. Petitioner Must Recognize Gain Previously Excluded 

Under Section 121. 

Since section 1038 applies to the reacquisition of the property, we proceed to determine whether petitioner must recognize gain previously excluded under section 121. A reading of 

the statute leads to two important conclusions: (i) section 

1038(e) expressly contemplates the sale and subsequent 

reacquisition of a seller’s principal residence and (ii) other 

than section 1038(e), section 1038 does not contain any provision that would allow a taxpayer to exclude section 121 gain 

resulting from a sale and subsequent reacquisition of a principal residence. 

As previously discussed, section 1038(e) contains a special 

rule for when the property sold is the taxpayer’s principal 

residence and the taxpayer resells the residence within one 

year of reacquisition. In fact, section 1038(e) is titled ‘‘Principal residences’’, indicating that Congress foresaw the potential interaction of sections 1038 and 121. Section 1038(e) thus 

operates as an exception to the general rule of section 1038 

when the subject property is the seller’s principal residence. 

Sellers fulfilling the requirements of section 1038(e) are 

essentially allowed to collapse the initial sale and subsequent 

resale into one transaction. The legislative history behind the 

section 1038(e) exception is unclear as to why Congress limited the exception to sellers who resell property within one 

year of reacquisition. Whatever the reasoning behind the 

exception, the relief offered by section 1038(e) is clearly limited to those sellers who resell their principal residences 

within one year of reacquisition. Since petitioner did not 

resell the property within one year of reacquisition, he is 

ineligible for the section 1038(e) exception and must recognize gain in accordance with the general rules of section 

1038. 

Petitioner argues that ‘‘[t]he statute is devoid of any language indicating that the [s]ection 121 exclusion would be 

disallowed on a reacquisition’’. Petitioner also argues that we 

306 142 UNITED STATES TAX COURT REPORTS (297) 

should interpret the absence of any specific provision in section 1038 mandating recognition of previously excluded section 121 gain to mean that section 1038 does not apply to 

recapture section 121 gain under any circumstances. To the 

contrary, the flush language of section 1038(e) specifically 

provides that section 1038(b), (c), and (d) shall not apply to 

the reacquisition of a principal residence, but only if the 

seller resells the residence within one year of reacquisition. 

Petitioner is understandably confused since the special rule 

of section 1038(e) is stated in the negative: Sellers who 

reacquire a principal residence but then resell it within one 

year do not have to recognize gain under section 1038(b). 

However, the positive rule can be stated thusly: Sellers who 

reacquire a principal residence but do not resell it within one 

year must recognize any gain under section 1038(b) because, 

unless section 1038(e) applies, section 1038 overrides the 

exclusion under section 121. 

Additionally, the special rule in section 1038(e) calls to 

mind the statutory canon of construction ‘‘expressio unius est 

exclusio alterius’’, meaning that if a statute provides specific 

exceptions to a general rule, we may infer that Congress 

intended to exclude any further exceptions ‘‘ ‘in the absence 

of evidence of a contrary legislative intent.’ ’’ United States v. 

Smith, 499 U.S. 160, 167 (1991) (quoting Andrus v. Glover 

Constr. Co., 446 U.S. 608, 616–617 (1980)); Catterall v. 

Commissioner, 68 T.C. 413, 421 (1977), aff ’d sub nom. 

Vorbleski v. Commissioner, 589 F.2d 123 (3d Cir. 1978). 

Here, section 1038(e) is the only exception to the general rule 

of section 1038 requiring recognition of gain to the extent a 

seller receives money and other property before reacquisition. 

We are disinclined to carve out other exceptions to section 

1038 where Congress has not expressly done so. 

C. Recognition of Gain Conforms With the Intent of Section 

1038 and the Economics of the Transaction. 

Congress enacted section 1038 to remedy the hardship 

worked on sellers forced to recognize gain or loss purely on 

account of fluctuations in fair market value where upon 

repossession the sellers are in a position substantially 

similar to the position they were in before the sale. However, 

Congress limited the nonrecognition of gain only to any 

change in the value of the underlying property, not to cash 

(297) DEBOUGH v. COMMISSIONER 307

or other property received by the seller before reacquisition. 

Sec. 1038(b); S. Rept. No. 88–1361, supra at 5, 1964–2 C.B. 

at 831 (‘‘Your committee believes that it is inappropriate to 

measure gain upon repossession by reference to the fair 

market value of the repossessed property. * * * Apart from 

any payments he may have received, he actually is in no 

better position than he was before he made the sale.’’ 

(Emphasis added.)). Section 1038(b) requires recognition of 

gain where a seller receives ‘‘money’’ or ‘‘other property’’ 

before reacquisition and therefore occupies an improved position after reacquisition. 

Petitioner received $505,000 in cash before the reacquisition of his former principal residence. Petitioner has received 

‘‘money’’ as defined within section 1038(b) that exceeds gain 

previously returned as income on the sale of the property 

during periods before the reacquisition. We see nothing 

unfair in the Code’s taxing petitioner on receipt of this 

income, as he is actually in a better position than he was 

before the sale by virtue of having ownership over both the 

property and $505,000. See also Hovhannissian v. Commissioner, T.C. Memo. 1997–444, 74 T.C.M. (CCH) 752, 757 

(1997) (‘‘Section 1038(b) ensures that all receipts of cash and 

other property by the seller prior to reacquisition are taxed 

as income to return the seller to as close to status quo ante 

with respect to the reacquired property as circumstances will 

permit.’’). The section 1038(b) requirement of recognition of 

gain is ‘‘mandatory and does not excuse any taxpayer from 

recognizing gain and paying taxes thereon’’. Greene v. 

Commissioner, 76 T.C. at 1025; see also Kregear v. Commissioner, T.C. Memo. 1987–258, 53 T.C.M. (CCH) 869, 872 

(1987) (‘‘The language of section 1038, however, is mandatory. We may not disregard the plain language of the 

statute.’’). 

Our decision ensures that tax treatment of the transactions matches the underlying economic reality. Petitioner 

received $505,000 in income and is taxed on that income 

absent any applicable exclusion or deduction. 

D. Our Interpretation of Section 1038 Accords With Basic 

Federal Income Tax Principles. 

Respondent contends and we agree that application of section 1038 to the case at hand is consistent with the fundaVerDate Mar 15 2010 13:12 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00011 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\DEBOUGH JAMIE
308 142 UNITED STATES TAX COURT REPORTS (297) 

mental tenets of Federal tax law. Gross income has long been 

defined to include any accession to wealth, clearly realized, 

and over which the taxpayer has complete dominion. 

Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431 

(1955). Petitioner attempts to counter this basic principle of 

tax law by arguing that ‘‘every exclusion or deduction provided by Congress creates an exception to the taxation of 

wealth ascended to, and it is not reasonable to assume that 

by remaining silent on the question, Congress intended to 

nullify a tax benefit it has created.’’ As noted, section 1038 

is not silent on the taxation of gain previously excluded 

under section 121 since section 1038(e) provides a special 

rule for sellers who resell a principal residence within one 

year of reacquisition. Further, petitioner’s argument 

acknowledges that it is Congress who must create exclusions 

and deductions in order for taxpayers not to be taxed on the 

receipt of income, and Congress has not created any exclusion or deduction applicable to petitioner. Petitioner’s 

$505,000 is clearly an accession to wealth, and we agree with 

respondent that section 1038, in the absence of any statutory 

exceptions, mandates inclusion of that amount in petitioner’s 

gross income. 

In reaching our holding, we have considered all arguments 

made, and, to the extent not mentioned above, we conclude 

they are moot, irrelevant, or without merit. 

To reflect the foregoing, 

Decision will be entered for respondent

f 

.